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What is an employer’s obligation to support employees who suffer a mental illness?

In the Federal Court decision of Tropoulos v Journey Lawyers Pty Ltd [2019][1], the Court considered the obligations of an employer to an employee who suffered a mental illness. Mr Tropoulos was a senior associate solicitor employed by Journey Lawyers. Journey Lawyers was a small specialist family law firm located in Queensland.

Mr Tropoulos suffered from a depressive disorder. His disability within the meaning of section 4 of the Disability Discrimination Act 1992 (Cth)(Act) was not in dispute between the parties.

Mr Tropoulos took leave from his employment for approximately six (6) months because of his disability and afterwards sought to return to work on a graduated basis, that is, five half-days per week as a senior associate.

Journey Lawyers proposed the basis upon which Mr Tropoulos returned to work which included, amongst other things, an initial three-day week on a reduced annual salary as a “family lawyer” in lieu of a senior associate. Journey Lawyers further proposed that Mr Tropoulos work in an open plan setting rather than work from his previously allocated office as that office had been allocated to another full-time associate.

Mr Tropoulos rejected this proposal and filed a complaint with the Australian Human Rights Commission and subsequently the Federal Court.

Section 5 of the Act provides that a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability if the discriminator does not make or proposes not to make reasonable adjustments for the person and that failure has or would have the effect that the aggrieved person is treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

Mr Tropoulos argued that his employer failed to make reasonable adjustments to his role and was in breach of the Act. The Act contemplates that an adjustment is reasonable unless the making of the adjustment would impose unjustifiable hardship on the person.

Mr Tropoulos was unable to perform billable work at anywhere near his previous levels and provided no indication of when he would be able to do so. The Court noted that the employer had made reasonable adjustments notwithstanding that it rejected the employee’s proposal of a five half-day working pattern in favour of a three-day working week with an offer of additional leave if required. Due to the firm’s small size, the financial strain of a five half-day working pattern would cause the employer unjustifiable hardship.

The employer had sustained the employee’s salary and position for an extended period but because it was a small firm with tight budgets, the Court found that further extension of this support would impose unjustifiable hardship on the employer.

It would be interesting to see if similar facts concerning a large legal practice (without the same tight budgets or financial constraints) would yield the same result in the Federal Court.

Contact the team at Conditsis Lawyers for all your employment questions on (02) 4324 5688 or by email at enquiry@conditsis.com


[1] FCA 436

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