Case Alert

Federal Court of Australia Dismisses Lawyer’s Disability Discrimination
Claim Against Former Legal Practice

Authors: Jenny Inness, Amelia Dowey & Justin Pen

April 2019

The Federal Court of Australia has dismissed a lawyer’s claims for disability discrimination and victimisation against his employer, a small specialist family law legal practice.

In Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436, a lawyer unsuccessfully argued that he had not been provided with “reasonable adjustments”, in contravention of section 5(2) of the Disability Discrimination Act 1992 (Cth) (“DD Act”), when he returned to work after a period of absence following a major depressive episode.

It was not in dispute that the lawyer suffered from a disability within the meaning of section 4(1) of the DD Act.

Accordingly, the Court had to determine whether or not the legal practice should have made certain reasonable adjustments for the lawyer with respect to the lawyer’s disability. Relevantly, the lawyer pleaded that the legal practice should have:

• provided the lawyer with half-day working days;
• provided the lawyer with briefings on his return to work;
• allowed the lawyer to work on his former client files, and not allocate the lawyer any new legal aid clients;
• allowed the lawyer to return to the office he had occupied prior to his absence;
• allowed the lawyer to his position, conditions and salary of Senior Associate, rather than be given the new role of “Family Lawyer”; and
• participated in a mediation with the lawyer, in accordance with his contract of employment.

Significantly, the Court observed that the legal practice had not received a formal “return to work” program from the lawyer’s treating psychiatrist and, therefore, lacked knowledge about the extent of the lawyer’s disability and the specific needs flowing from his disability. Relevantly, the Court remarked:

“… [P]ractically, the alleged discriminator must be given some knowledge of the nature of the disability and the needs of the disabled person in order to make reasonable adjustments to their conditions.”

Notwithstanding, the Court heard that the legal practice had facilitated an informal return to work program for the lawyer. As part of its informal program, the legal practice attempted to:

• provide the lawyer with uncomplicated work on his return;
  provide the lawyer with time to recover;
• suggest to the lawyer that he work with other lawyers in the firm; and
• offer the lawyer additional leave to facilitate further recovery, if required.

In doing so, the Court accepted that the legal practice had, in fact, made reasonable adjustments for the lawyer within the meaning of section 5(2) of the DD Act.

The Court then rejected the lawyer’s claims that the legal practice’s failure to implement his proposed reasonable adjustments constituted disability discrimination, finding that, in any event, the lawyer had not been treated less favourably than a lawyer, without his disability, would have been treated in materially similar circumstances.

Furthermore, the Court accepted that, even if the legal practice’s conduct had amounted to disability discrimination, the lawyer’s case on liability would have failed on the bases that:

• the lawyer’s proposed reasonable adjustments constituted an “unjustifiable hardship” on the legal practice under section 11 of the DD Act or would have been; and
• the lawyer would have been unable to carry out the inherent requirements of practice as an Australian legal practitioner.

Finally, the Court held that, assuming it could hear a civil complaint of victimisation, the alleged detriments imposed on the lawyer had not been imposed “because of” the lawyer’s assertion of his legal rights.