FEDERAL COURT OF AUSTRALIA
Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436
ORDERS
Applicant | ||
AND: | JOURNEY LAWYERS PTY LTD ACN 125 790 605 Respondent | |
DATE OF ORDER: | 2 April 2019 |
THE COURT ORDERS THAT:
1. The originating application under the Australian Human Rights Commission Act 1986 (Cth) filed on 25 January 2017 be dismissed.
2. The Applicant pay the costs of the Respondent on a party-party basis, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
COLLIER J:
1 Before the Court is an application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), claiming direct discrimination against the applicant Mr Steven Tropoulos within the meaning of s 5 of the Disability Discrimination Act 1992 (Cth) (DD Act) by the respondent, Journey Lawyers Pty Ltd (Journey Lawyers).
2 In summary, Mr Tropoulos suffers from the disability of a depressive disorder. At all material times he was employed as a lawyer by Journey Lawyers, and claims that Journey Lawyers discriminated against him on the basis of that disability by (inter alia) failing to make reasonable adjustments for his return to work following periods of absences due to his disability. Mr Tropoulos contends that Journey Lawyers engaged in direct discrimination against him by treating him less favourably than it would have treated a person without his disability in circumstances that were not materially different. This included reducing his salary, demoting him from the position of “Senior Associate” to “Family Lawyer”, reallocating his office to another employee during his absence and not returning the office to him, failing to implement a suitable graduated return to work program following Mr Tropoulos’ period of sick leave and failing to engage in mediation.
3 In his amended statement of claim filed 31 July 2017 (amended statement of claim), Mr Tropoulos claims that the conduct of Journey Lawyers was discrimination in breach of s 15 of the DD Act.
4 By way of remedies, Mr Tropoulos seeks an apology from the respondent; an undertaking from the respondent to review and update training policies and procedures, compensation for hurt, humiliation and distress, aggravated damages, economic loss for past and future lost earnings, past medical expenses and future medical expenses; interest; and costs. Mr Tropoulos’ earlier claim for reinstatement was abandoned at the commencement of the trial.
5 I note that Mr Tropoulos commenced proceedings in this Court against both Journey Lawyers and its principal Mr Bryan Galvin. However the complaint to the Commission was against Journey Lawyers, and did not extend to Mr Galvin. In Tropoulos v Journey Lawyers Pty Ltd [2018] FCA 347 I dismissed the application in this Court to the extent that it was against Mr Galvin. It follows that Journey Lawyers is the sole respondent to the present proceedings.
6 I also note that while in his originating application Mr Tropoulos claimed that Journey Lawyers engaged in both direct and indirect discrimination against him, no case of indirect discrimination was pleaded by him in the amended statement of claim. At the commencement of the trial Mr Tropoulos sought leave to further amend the amended statement of claim to plead such a case, however after further instructions were provided, his Counsel did not press that application (transcript p 13 ln 45). Accordingly insofar as Mr Tropoulos claims discrimination under the DD Act, he relies solely on a claim of direct disability discrimination within the meaning of s 5 of the DD Act, and in particular contravention of s 15 of the DD Act.
7 Finally, Mr Tropoulos alleged that Journey Lawyers failed to comply with cl 25 of his employment contract concerning mediation of employment disputes, and more particularly in his originating application that Journey Lawyers had breached his contract of employment in refusing to participate in the process prescribed by cl 25 of the contract. Nonetheless Mr Tropoulos has not pleaded breach of contract in his amended statement of claim, and he made no submissions in respect of this issue. Accordingly I understand that this issue is not pressed.
8 Since his teenage years, Mr Tropoulos has suffered from a depressive disorder. He deposed that he has managed this disability by a combination of chemical and therapeutic treatments. For more than 10 years his primary medical practitioner in respect of this disability has been psychiatrist Dr Joshua Geffen. I note that Dr Geffen gave evidence in this proceeding, including a diagnosis that Mr Tropoulos suffers from Bipolar Disorder type II, being an evolution of his initial diagnosis of major depressive disorder.
Mr Tropoulos’ employment history, and Journey Lawyers
9 Mr Tropoulos completed an arts/law degree at James Cook University in 2001 and was admitted as a solicitor on 15 July 2002. Since that time, he has worked for various law firms in the greater Brisbane area. In 2006, Mr Tropoulos obtained the degree of Master of Laws (Public Law) from Queensland University of Technology.
10 In about February 2012 Mr Tropoulos responded to an advertisement for a “Senior Family Lawyer” with the respondent, being a permanent, full-time position. Mr Galvin interviewed Mr Tropoulos, and Mr Tropoulos commenced a three day trial, at the end of which Mr Tropoulos was advised orally and in writing that he was the successful candidate.
11 Mr Tropoulos signed a contract of employment with Journey Lawyers on 24 February 2012 with a base salary of $100,000, exclusive of superannuation and bonuses. A copy of that contract of employment was annexed to Mr Tropoulos’ affidavit of 15 May 2017.
12 Journey Lawyers is an incorporated legal practice of which Mr Bryan Galvin is the principal. As at August 2015, the firm employed approximately eight lawyers (including Mr Galvin) and eight support staff. Mrs Lynette Galvin, who is married to Mr Galvin, made Court appearances on behalf of the firm.
13 Journey Lawyers specialised in matrimonial disputes including separation and divorce, the breakdown of de facto relationships, child custody and access, financial maintenance, property settlements, domestic violence and areas of law related to family law. I understand that these other areas include wills, powers of attorney and estate matters.
14 The firm’s primary practice is in the Family Court of Australia and the family law jurisdiction of the Federal Circuit Court of Australia.
15 Journey Lawyers’ clients are almost exclusively natural persons who seek advice and representation in respect of family law matters. I understand this includes both private clients and legal aid clients.
Deterioration in Mr Tropoulos’ condition
16 Mr Tropoulos deposed that he began to experience an increase in the severity of the symptoms of his depressive disorder in or around July 2015. At this point Mr Tropoulos held the position of Senior Associate with Journey Lawyers.
17 Mr Tropoulos deposed that this deterioration in his mental health coincided with a period in the firm where he worked continuously for around 20 days to ensure that client demands and court deadlines were met, and in the context of significant ongoing tension between staff members at the office around this time. Journey Lawyers disputes Mr Tropoulos’ claims that he worked continuously for 20 days and that there was such alleged tension.
18 On 10 August 2015, Mr Tropoulos left the office and went to see Dr Geffen. Dr Geffen counselled Mr Tropoulos to take urgent leave, changed the dosage of Mr Tropoulos’ medication and prescribed new medication for him.
19 Also on 10 August 2015, Dr Geffen sought permission to disclose the nature of Mr Tropoulos’ medical condition to Journey Lawyers, and Mr Tropoulos consented to this.
20 On 13 August 2015, Dr Geffen forwarded a medical certificate to Ms Julie Hawley, the respondent’s practice manager, certifying Mr Tropoulos as unfit for work up to and including 18 August 2015.
21 On 3 September 2015, Mr Tropoulos forwarded an additional medical certificate to Ms Hawley. The medical certificate, dated 31 August 2015, indicated that Dr Geffen had reviewed the applicant on 27 August 2015 and advised him not to attend work from 27 August 2015 to 18 September 2015 inclusive.
22 On 18 September 2015, Ms Hawley emailed Mr Tropoulos advising that he would not be able to return to work until he was medically cleared and that “reduced days and workload” would need to be discussed.
Key events in respect of the complaint
23 The following events are material to Mr Tropoulos’ complaint before the Australian Human Rights Commission (Commission), and claim in this Court.
1. First return to work – 22 September 2015
24 Mr Tropoulos attempted to return to work on or about 22 September 2015. However it is clear that the attempt was unsuccessful. Mr Tropoulos recommenced sick leave from 23 September 2015.
2. Absence from work – 23 September to 20 October 2015, and relevant correspondence
25 During his absence from work following the first attempted return to work, Mr Tropoulos emailed Ms Hawley on 1 October 2015 in the following terms:
Hi julie
I saw my doctor yesterday. He has suggested that I pop in on a couple of occasions and say hi get my desk ready have a short discussion with my coworkers get an cases or practice updates and then leave. Rather than placing pressure of discussions on a particular return to work date.
He has suggested that I work for a few hours a day 5 days for the first week or so. He is of the view that getting ready for work etc will aid in my recovery rather then being isolated.
I have told my doctor that management do not want me coming to work until I am better. He said go anyway to pick up drop off etc and that is what high level professionals do whether they are sick or on holidays etc.
I was going to call but I don't know your hours that you are in the office etc and we may end up trying to get each other on the phone.
Yes it all sounds confusing to me too but I can see the benefit as well.
I am getting better every day. I am seeing my doctor again on 6 October and I am on a wait list if someone cancels before 19 October in order to obtain certification for fitness for work that you require.
Steve Tropoulos
(Errors in original.)
26 In response, Mr Galvin sent an email to Mr Tropoulos on 2 October 2015 in the following terms:
Steve,
Hi.
Hope all is going okay for you and you are getting on top of things.
As for your return date, we were relying on your advice that you would be away until 19th October. Are you wanting to return earlier? If so, the clearance from your doctor needs to be for the earlier date.
wrt your files, for the good of the clients, we have had to distribute all your files to the other lawyers. As far as most of the clients are concerned, they have swapped permanently to alternative lawyers. Once you are back on deck, we will see if any clients are likely to go back to you. In the meantime, you do not need to worry about how they are going. The rest of the team are managing fine.
I do not want private clients being swapped from lawyers to lawyer. Once you are back, we will put an emphasis on you building up your workload with the new clients coming on board. As well, I will probably allocate all the legal aid files to you. They are charged at a lesser rate and I do not have a problem swapping lawyers. These will probably keep you busy until you build up a full private work load. As you build up the privates, we can introduce new legal aid clients to another lawyer.
With the proposal that you work only a couple of hours a day, we do not think that will work. As you know, to manage files you need to be available to do the work. A few hours a day will not be appropriate to service any type of file load. By the time you get in and settle down, it will be time to leave. Clients in our game are very needy and it is important that lawyers are available for the clients.
I think as well, attending only a couple of hours a day will affect your productivity to a point that your fee reducing will be adversely affected. Neither you nor I would want that to happen. And if you have court and conferences to attend, they will take up more than a few hours.
When you came back last time, we suggested three days a week. That meant that you were available for clients being only missing every day and we suggest you do this again, however, if you think that is too much then let me know.
From our perspective, we want you to come back and build up both your hours and productivity. There are restrictions about how this happens because we need to take into account the clients needs and restriction in managing client files. I am more than happy to talk to your doctor about this and we would appreciate some guidance from him though he needs to understand the duties of a family lawyer.
We have told the staff not to contact you on office or file issues. As you know, we do not like lawyers getting worried or involved in matters when they are on holidays or other leave. If you want to talk to staff outside this caveat, that is a matter for the individual staff and yourself.
…
27 Mr Tropoulos responded to the email of 2 October 2015 in the following terms:
Dear Bryan,
I agree totally with your perspective on requirements for the job and I did mention that matters you raised with my Doctor. We do unfortunately have high performance/hours requirement to get the job done well.
Legal Aid work does not sound very exciting but I am happy to do some of that work for the short term as you have proposed. I am a bit out of the loop with legal aid billing requirements but I will have Grant to assist with my particular queries and I don’t think there have been dramatic changes in the past couple of years.
I have become well in the past couple of days from my cold and my mental health. I am concerned that I have forgotten how to be a lawyer but I have my family law master guides and legislation books which I intend to start reading next week and I will look on the family court website and read some new cases. I think the return date of 19 October is good as I will be very well mentally able to concentrate etc and free of or reduced/manageable/appropriate anxiety to be able to do the job. This has been a very difficult time and I trust you are aware from either personal or just life experience that you have an understanding of what I have endured recently.
I will speak with my Doctor about whether I should return earlier than the 19th but I think he will say that 19th is the most appropriate given my recent better state of health and in order for my return to be successful.
The last couple of days feel like a holiday rather than the 5 weeks of feeling like fighting for my life and labouring to get the simplest things done. I am so grateful for this recent recovery.
I have copied Dr Geffen to this email.
Many thanks Bryan.
Kind regards
Steve Tropoulos.
28 Dr Geffen wrote to Journey Lawyers on 13 October 2015 in the following terms:
I reviewed Steve again this week. He is now fit to resume work as of 19/10/15. I have advised him to follow your jointly developed plan for moderate and manageable workload and regular breaks over the first two weeks of his return. As high level professionals with intimate knowledge of the workplace, I feel you are both well placed to arrange this directly between you.
The previous return to work was unfortunately premature and coincided with a viral illness which compounded his difficulties. We were keen for a rapid return to work and I apologise for the impact of this optimistic assessment on the workplace, on this occasion he is further improved and has been so in a more sustained way. I trust that barring other unfortunate coincidences Steve will be much more successful in completing a rapid RTW full time on this occasion.
3. Second return to work – on or about 19 October 2015
29 Mr Tropoulos returned to work with Journey Lawyers on or about 19 October 2015 on the basis that he would work three alternate days per week. It is clear that, during this period of return to work, Mr Tropoulos struggled with working. For example:
Mr Tropoulos did not attend 100% of the days. Dr Geffen gave evidence that Mr Tropoulos reported attending on 85% of the days expected, however it appears that Dr Geffen received communications from Journey Lawyers during this period indicating that Mr Tropoulos attended fewer than two of the three agreed work days.
Dr Geffen also gave evidence, which I accept, that on the days Mr Tropoulos attended work he had difficulties with anxiety in decision-making, expressed doubts about his abilities, felt fatigued and stressed, and found work difficult. Journey Lawyers accepted and agreed with this evidence.
30 On or about 4 December 2015 Mr Tropoulos recommenced sick leave. In an email of 8 December 2015 Dr Geffen wrote to Ms Hawley in the following terms:
Dear Julie,
Steve has had stuttering progress in trying to manage his depressive disorder. Initial response was encouraging and although he struggled with anxiety symptoms and concentration he benefitted from a slower graduated return to work. He is grateful for the supportive approach your organisation has shown. Unfortunately, independent of his return to work he has had a worsening of his mood state over the last two weeks despite taking ongoing treatment, and support and patience from the workplace.
I believe you recently suggested a longer period of leave for definitive treatment for Steve. I have mixed feelings as work can be very beneficial and provide social support, structure and a sense of value and competence. However I agree he is currently unfit to work and should take at least six weeks off work (not to return until 20/1/2016), it is possible that this may need to be extended by a further six weeks (that is 12 weeks in total). Thus one could plan for 12 weeks (until 4/3/2016) and an early return, or six weeks and update a week or so prior to 20/1/2016.
I hope this helps and please accept e-communication for now.
31 On 9 December 2015 Mr Galvin wrote a letter to Dr Geffen in reply to Dr Geffen’s email to Ms Hawley. This letter was emailed to Dr Geffen, and copied to Mr Tropoulos’ personal email address. It was in the following terms:
Dear Dr Geffen
Julie has passed your email onto me for comment and I believe it would be in the best interest if I gave you some background about Steve and his work.
I think I also need to explain the work situation so that you have a better understanding of the issues involved.
Our firm is a specialist Family Law firm and we only do matrimonial and defacto law. This means we are dealing constantly with people who are going through the stress of the break-up of personal relationships and the ancillary issues such as children and property. The lawyers are generally seen by the clients as a trusted advisor and often a confidante for the personal issues that arise. As well, when a client wants to discuss an issue with a lawyer, they generally want to talk to the lawyer “urgently” or at the very least, as soon as possible. Because matrimonial and defector issues are complex and because of the personal relationship with a client and their lawyer, the lawyer must be available for the client when they need that lawyer.
When Steve returned to work, we suggested he work a three day week. This was what we considered the minimum he could do, whilst still carrying on his role as a lawyer. To have done less days, would have adversely affected his ability to service his clients. In practice, however, most weeks he did not complete three days. Further, he demonstrated a clear reluctance to engage with clients and potential clients. Of course the need to engage with clients and potential clients is a key part of his role.
To be frank, Steve has not been successful in carrying out his role as a lawyer. We were aware of this but had not taken any action as we were hoping that he would improve.
In relation to your comments about the benefits of Steve returning to a work environment, we believe that the work is placing stress on him, particularly evidenced by his avoidance of clients and potential clients, when he can do so.
Steve also expressed a concern that his legal skills were diminished. I did not see any evidence to support his concern and I have faith in his legal skills, however it is apparent that he has lost confidence in himself.
Steve has also indicated that he is worried about the security of his employment. As you are aware, we at Journey have been making a concerted effort to accommodate Steve so that he can transition back to a more normal arrangement. To date this has not been working and from our perspective, the current situation cannot continue. The main reason we need to have the issues addressed is our obligation to our clients to provide ongoing quality service. A lawyer who is only coming in sporadically and showing a reluctance to see existing and new clients, places our professional reputation at risk. We had held off doing anything in the hope Steve would improve however, as you are aware, that has not happened.
As for the future, we cannot continue to retain Steve if he cannot provide proper service to the clients. We had been holding on in the hope he would improve. We obviously hold Steve in high regard but we need him to be fit when he returns to work. Therefore our preference is for him to take 6 months off which would give him plenty of time to recuperate and regain his confidence. This preference is based on our observations over the last five months. However if you or he feels this is too long, we think the suggested 12 weeks off is a minimum.
As for the future, we are prepared to hold a lawyer’s position open for him for the short term, including for our suggested six months, although we cannot guarantee it will be the same position he currently holds.
Our real concerns are that he will return to work in a relatively short time and still not be able to do his work properly. In that situation, we cannot guarantee we would be able to retain his services.
32 On or about 10 December 2015, Mr Tropoulos was admitted as an inpatient to Toowong Private Hospital. During his hospital admission, Mr Tropoulos underwent electroconvulsive therapy (ECT). Mr Tropoulos was discharged on 14 January 2016 and continued to undergo ECT on an outpatient basis.
33 Following Mr Tropoulos’ discharge from Toowong Private Hospital, Dr Geffen wrote to Ms Hawley on 19 January 2016, foreshadowing the prospect of Mr Tropoulos returning to work as follows:
Dear Julie,
This is just a brief update. Thank you for drawing my attention to Steve’s workplace difficulties in our initial attempts at early return to work with ongoing treatment and reduced workload. I also have a better understanding of the limitations of your working environment. This was helpful as a circuit-breaker and has allowed Steve and me to contrast this with his level of function when well, at times he has been too stoic and hard working for his own good. Thank you also for your clarification below.
Steve has undertaken treatment over the last six weeks and has improved markedly however we support your suggestion of an extended period off work to be fully work ready – plan for 12 weeks (until 4/3/2016). He is continuing his progress to be ready for this date. I understand both you and Steve prefer a full time return to work. Graduated returns are more typical but not essential, so if taking this path I would counsel all concerned to avoid overtime or particularly stressful work in the early phases of his return.
I hope this update helps with your planning.
Yours sincerely,
Dr Josh Geffen
34 On 9 February 2016, Mr Galvin sent the following email to Dr Geffen:
Dear Dr Geffen,
Apologies for the delay in responding to your previous email and thank you for your update regarding Steve.
We are not sending this email to Steve at present, though you are of course welcome to do so, at your discretion. The reason we are writing to you as his medical practitioners and not sending it to Steve is because we are concerned that informing him of the matter raised may adversely affect him.
Our issue is that Steve has been absent for so long, he will not be able to fulfil the role of “Senior Associate” that he held previously. This is because his legal skills will not be up to date and his previous client base does not exist. He will effectively commence as a “family lawyer” and will have to work his way up from there. When he returned briefly last year, Steve acknowledged that he was lacking in skills. In addition, he demonstrated a lack of confidence and a reluctant to see clients and attend court. Being specialist litigation lawyers, these skills are vital to being able to act as such.
The effect of Steve coming back as a “family lawyer” rather than as a “Senior Associate” means he will not have the seniority he previously held and his pay will be considerably less. Our pay scale is based on income produced. When he returned last year, we did not alter his position salary as it was clear to us that he was still unwell and was not likely to last at work. However, we should have reduced his pay at that point. In the future when Steve returns, we simply cannot pay him his previous salary as he will not be able to produce work until he up-skills and builds up his client base and confidence.
Therefore we need to talk to Steve, preferably before he returns to work and discuss both our expectations as to his working ability and the pay and position to which he will return.
Can you advise whether you consider this discussion will affect his health and offer any other assistance as to how we handle the situation.
Return to Work Date
We note that you were suggesting a return to work date for Steve of 4 March 2016. However, due to management arrangements both Julie and myself will be overseas from 8 April to 3 May. We are concerned that if any issues arise with Steve in our absence, the senior management staff will not be immediately available to help and support his and deal with his issues.
Therefore our preference is for Steve not to return back to work any earlier than 9 May 2016 this is particularly important in light of our intentions above and if you believe that Steve may not fully recovered.
We look forward to hearing from you as to the best way to move forward.
Regards
Bryan Galvin
35 Dr Geffen discussed this email with Mr Tropoulos. He replied to the email from Mr Gavin on 16 February 2016 as follows:
Dear Julie
Thank you for your email. I have discussed it with Steve and been given permission to respond (you will note he is cc’d). I have been pleased with Steve’s medical progress as previously outlined.
I think it has been agreed by all parties that assessment of Steve’s work functioning and skills based on an aborted and brief return to work would not be a fair [sic] (at this time both you and Steve acknowledge his illness was too severe to function effectively at work). The best way to assess his current work capability is to consider his health and overall working capacity/skills while working at your practice (indeed one should likely exclude this period from your consideration).
We understand your pay systems relate to income derived and think this issue will need to be considered further.
With respect to a timing a return this is something I base on medical fitness rather than organisational issues. I understand your difficulty. I am sure this too can be discussed further.
I am happy for you to inform Steve about this, but suggest email with a cc to me will allow for a thoughtful and mutually considered process ensuring all parties needs are considered.
36 Mr Galvin responded to Dr Geffen in the following terms:
Dear Dr Geffen
Thank you for your recent email.
You may have misunderstood the purpose of our email to you. We were not seeking advice as to Steve’s employment and conditions; we were advising you what was proposed. The purpose of contacting you was from a medical perspective; we were letting you know what we intended to do so that you would be aware if there were any medical effects.
Steve contacted Julie our Practice Manager last Friday and I spoke briefly to him. He is aware of what we are proposing so I understand you have discussed the matter with him. We will approach Steve direct for our further discussions about his future with Journey.
37 On 24 February 2016 a letter on behalf of Mr Galvin was sent to Mr Tropoulos, in the following terms:
Steve
Hi, hope that you are well.
I tried to call you yesterday but your phone went to message bank. As you are aware, we had written to your Doctor about your proposed return to work.
Firstly, it should be noted that except for one short period, you have been absent from this office for approximately six months. In that time, our processes have developed such that some of the roles you previously played, have been taken over by others. As well, files you managed at that time, have generally been completed or otherwise finalised. Also, because of a shortage of office space, your office has been re-allocated to another lawyer.
Further, when you briefly returned to the office late last year, you demonstrated that your capacity to carry out legal work was severely diminished. You showed a reluctance to attend at and do court work; you avoided seeing clients, particularly initial clients. On a number of occasions you declared that you were out of touch with the law.
Your Future Role
The position of Senior Associate is one where the role is to be the primary mentor for other lawyers. Your sustained absence means that this role has been taken by others. Further, your extended absence from practicing the law and your previous reluctance to engage in legal work means that you need to demonstrate a sustained ability to understand and apply law to matters, before we can assume you can return to that role.
You will be allocated a range of files initially, this may include legal aid files. In addition, you will be expected to assist in attending Court appearances and Hearings on other lawyer’s [sic] matters. We also expect you to conduct initial interviews and provide the usual high standard of legal advice. Because you have been out of the law for some time, I will be requiring another lawyer to sit in on appointments with you to ensure your professional advice is sound.
If there is an issue with the quality of your professional work, we will of course review any issues with you.
Future Pay Arrangements
As you are aware, our contracts are such that your salary is based on your ability to produce income for the Firm. When you have been successful in the past, we have increase your income and when you have been less productive your income has decreased. When you return, you will not be earning the income you previously earned. Accordingly, the salary we will be paying you will be less than what you were earning when you went off on leave. As you have not been working for six months, the formula envisaged in our agreement is not applicable; to impose it would mean your salary would be negligible. We are proposing a starting salary of $75,000 a year with a review after three months to assess your return and performance. This means, you will need to achieve a weekly budget of $5,500. If you work less than a five day week, the pay would be pro rata. We expect you to take a few weeks to build up a workload but it is your responsibility to do so. In the absence of billable work, we will give you other tasks to ensure you achieve five productive hours each day.
Supervision
As you have been absent for so long, your performance will need to be supervised and that task will be jointly managed by one of the other lawyers and myself. We have an obligation to our clients to ensure that the quality of the work is commensurate to both their expectations and Journey’s standards.
Return to Work Date
Your doctor has suggested a re-commencement date in early March. This is not particularly suitable to Journey. Both myself and the Practice Manager will be absent for the month of April. We are concerned that should you return to work before May that you will not have the adequate supervision, support and reassurance that you have previously required. Therefore, our preferred start date is during the month of May when I have returned to work.
Initial Working Days
I am concerned that you may find it difficult to commence working a full five day week and would suggest you start working a three day week until you feel confident to return full time.
Conclusion
Because of your absence, you will not be returning to the same position that you left six months ago. Whilst this may not be to your satisfaction, the reality is that you must essentially retrain and demonstrate you can carry out the role of a specialist Family Lawyer in a competent and professional manner.
Please remember we have a professional obligation to our clients to ensure the services they receive are professional and competent. For you to re-join the workforce, you must demonstrate that you are able to carry out your work in a professional capacity.
We will be obliged to monitor your performance and ensure that you are capable of doing your work. If you fail to carry out your obligations, we will need to review your position. If on the other hand you demonstrate that you are capable of carrying out the role, that also will be recognised.
As previously mentioned, I should prefer you to recommence in May. If you are reluctant to do so, we of course need to consider our obligations to clients and staff. Please consider and advise at your convenience.
7. Letters of 15 March 2016 and 18 March 2016
38 On 15 March 2016 the lawyers for Mr Tropoulos, Susan Moriarty & Associates, wrote to Journey Lawyers on behalf of Mr Tropoulos. The letter stated, materially, as follows:
As you are aware, Mr Tropoulos, has been employed with your firm since 24 February 2012 as a permanent fulltime Senior Lawyer with a starting salary of $100,000 per annum, plus bonuses and superannuation. These terms are reproduced in his Contract of Employment, a copy of which we have sighted for verification.
We note that you refused to permit our client to return to work on 4 March 2016 notwithstanding he was certified medically fit for work by his treating doctor on the basis that both you and your Practice Manager were absent overseas for the month of April. You proposed a return date in May 2016.
…
We are instructed to advise that Mr Tropoulos intends to return to work once medically certified fit for that purpose. We have advised him that his demotion and loss of salary constitute 'prima facie' discrimination entitling him to exercise rights in either one of two jurisdictions. Our purpose in writing to you is to seek the reversal of these two decisions and the voluntary reinstatement of his title and salary.
39 On 18 March 2016 the lawyers for Journey Lawyers, Bennett & Philp, wrote to Susan Moriarty & Associates in response to the letter of 15 March 2016. In that letter the lawyers for Journey Lawyers stated, inter alia, that Journey Lawyers had “bent over backwards” to assist Mr Tropoulos and to allow him the opportunity to return to work for his own benefit and for the benefit of Journey Lawyers. Further in that letter Bennett & Philp wrote, inter alia:
7. It is simply the case that the position that Steve formerly held has long since ceased to exist such that it has become redundant. However, by our client’s correspondence of 24 February 2016 our client made clear that it was prepared to continue to employ Steve in an alternative position that was (and is) available in line with our client’s business, operational and staffing needs. That correspondence was written in good faith in an endeavour to do fairness between our client’s own business, operational and staffing needs and to Steve, by offering to continue to employ Steve in a position that is available.
40 In relation to the prospect of Mr Tropoulos returning to work the letter from Bennett & Philp continued:
8 There are also a couple of factual errors in your correspondence that should be corrected for the record:
(a) Your correspondence refers to “an aborted return to work rehabilitation program of four days' duration commencing 22 September 2015”. That “return to work rehabilitation program” actually commenced on 21 October 2015 in which time Steve actually worked 6 days (being alternate days from 21 October 2015 and in the week commencing 2 November 2015) but has been entirely absent from work since the week commencing Monday, 9 November 2015.
(b) Your correspondence also states:
“We note that you refused to permit our client to return to work on 4 March 2016 notwithstanding he was certified medically fit for work by his treating doctor on the basis that both you and your Practice Manager were absent overseas for the month of April. You proposed a return date in May 2016.”
That is not what our client’s correspondence of 24 February 2016 says. Our client’s correspondence actually says the following:
“Your [Steve’s] doctor has suggested a re-commencement date in early March. This is not particularly suitable to Journey. Both myself and the Practice Manager will be absent for the month of April. We are concerned that should you return to work before May that you will not have the adequate supervision, support and reassurance that you have previously required. Therefore, our preferred start date is during the month of May when I [Bryan Galvin] have returned to work.”
And further:
“As previously mentioned, I would prefer you to recommence in May. If you are reluctant to do so, we of course need to consider our obligations to clients and staff. Please consider and advise at your convenience.”
By that correspondence of 24 February 2016 and by further email correspondence from Julie Hawley of our client to Steve on 2 March 2016 (at 1:55 PM), Steve was asked to inform our client as to when he intended to return to work. However, there has been no response from Steve (or from your firm) in relation to such enquiry. The “return date” of 4 March 2016 appears to derive from an email from Steve’s treating psychiatrist, Dr Josh Geffen, to our client (copied to Steve) of 19 January 2016, in which there was an indication that Steve may be ready to return to work on 4 March 2016. However, we note first that 4 March 2016 is a Friday - that is an unusual date for a person to return to work. Furthermore, the actual text of Dr Geffen’s email that refers to 4 March 2016 is as follows:
“Steve has undertaken treatment over the last six weeks and has improved markedly however we support your suggestion of an extended period of work to be fully work ready - plan for 12 weeks (until 4/3/2016). He is continuing his progress to be ready for this date.”
However, nothing more definite than this in terms of a date by which Steve might be fit to return to work - let alone a date requested by your client that he return to work; as no such request has ever been made - has ever been communicated to our client.
It is also the case that whilst it is asserted in your correspondence that Steve has been “certified medically fit for work by his treating doctor”, no such medical certification has ever been provided to our client.
9 We have set out the above matters in order to set the record straight. Most simply, our client has always acted towards Steve fairly and being mindful of Steve’s best interests, but whilst also (as our client is quite entitled to do) having regard to our client’s own reasonable business and operational interests. To continue in that vein, our client is prepared for Steve to return to work on the following terms:
(a) Our client must first be provided with written medical certification of Steve’s fitness to return to work to discharge the duties and responsibilities as required of him under his employment contract dated 24 February 2012 (“Employment Contract”);
(b) Steve will resume employment with our client under and on exactly the same terms as set out in the Employment Contract. For the sake of clarity, Steve’s salary will be $100,000 per annum plus compulsory superannuation contributions. Steve’s salary will of course be subject to fluctuation (either increase or decrease) as provided for in the Employment Contract at clause 7 and Schedule B. Steve’s position will be that of an employed Senior Family Lawyer. The only term that will not apply to Steve's resumption of his employment is clause 5 that relates to “Probationary/Qualifying Period”.
(c) Given Steve’s lengthy absence from work, as would occur for any professional employee returning to work after a lengthy absence, Steve’s work and performance will initially be closely monitored and supervised in the manner as set out in the correspondence from our client of 24 February 2016.
(d) It goes without saying that, if Steve is unable to fulfil the inherent requirements of the role of a Senior Family Lawyer as required under the Employment Contract, his ongoing employment with our client will be untenable.
(e) Our client’s preference is still for Steve's return to work date to be in early May 2016 once Mr Galvin and Ms Hawley (senior management of our client) return from overseas. However, if that is too far away and if Steve is presently certified medically fit to discharge his duties and responsibilities under the Employment Contract (and our client must be provided with that medical certification - as required by paragraph 9(a) above) then Steve must return to work commencing Monday, 21 March 2016 so that our client's Mr Galvin and Ms Hawley have at least 2½ weeks (notwithstanding the Easter holidays that will occur in this period) before their departure overseas on 7 April 2016 to assist Steve in his return to work and to supervise and monitor his performance. Please advise as a matter of urgency as to when our client can expect Steve to return to work.
10 The matters set out above are entirely fair and are in accordance with the terms of Steve's Employment Contract. In that regard, for the sake of clarity, we are instructed to point out the following further matters:
(a) There is no actual position of “Senior Associate”. This is simply an honorific.
(b) Further in this regard, as is apparent from the Employment Contract, the remuneration of professional staff members (certainly after initial probationary periods are served) is not based on what title the staff member may hold but, rather, their proven and ongoing income producing capacity for our client. As such, it is entirely fair (also for reasons as set out in our client’s correspondence of 24 February 2016 under the heading “Future Pay Arrangements”) for Steve to be remunerated on his return to work at the salary level of $100,000 as set out in his Employment Contract. If Steve returns to work and performs well then his salary will be reviewed and increased in line with clause 7 and Schedule B of the Employment Contract.
41 Mr Tropoulos was again admitted to Toowong Private Hospital on 17 March 2016 and was discharged on 23 April 2016. He underwent further ECT during this period.
8. Letters of 7 April 2016 and 9 May 2016
42 On 7 April 2016 Bennett & Philp Lawyers wrote on behalf of Journey Lawyers to Susan Moriarty & Associates, stating as follows:
At this point, neither we nor our client are prepared to enter into debate concerning the contentions (which, for the record, are without basis) that anything our client has done or has proposed to do in respect of Steve is in any way discriminatory or unfair. The matters set out in our correspondence of 18 March 2016 stand to the effect that Steve’s former position no longer exists but there is a role available for Steve in accordance with his written contract of employment dated 24 February 2012.
However, as made clear in our correspondence of 18 March 2016 any return to work by Steve is conditional on written medical certification being provided as to Steve’s fitness to return to work to discharge all of the duties and responsibilities as required of him under that employment contract as a senior family lawyer. Until such written medical certification is provided any further discussion regarding the details of Steve's return to work for Journey Family Lawyers is premature. It is only when such written medical certification is provided (that also clearly and precisely sets out the date from which Steve will be medically fit to return to work) that any other details about Steve's return to work can and should be addressed.
Further in this regard we note that the correspondence from Susan Moriarty & Associates of 15 March 2016 expressly states (in the context of an assertion that our client refused to permit Steve to return to work on 4 March 2016) that Steve “was certified medically fit for work by his treating doctor”. Given that express statement, it must be that there is written medical certification of Steve's fitness to return to work as a senior family lawyer that predates 4 March 2016 or, at least, 15 March 2016. Please provide a copy of that written medical certification as per the request made in our correspondence of 18 March 2016.
43 On 9 May 2016 Bennett & Philp Lawyers again wrote to Susan Moriarty & Associates, stating materially:
Our client’s position remains the same as set out in our correspondence of 7 April 2016. Any discussion regarding any details of Steven’s return to work is entirely premature until written medical certification is provided certifying that Steven is fit to return to work to discharge all of his duties and responsibilities as a senior family lawyer as set out in his written contract of employment.
It is on that basis that our client is not agreeable to a without prejudice meeting…
9. Letter of 28 June 2016 and Dr Geffen’s report of 20 May 2016
44 On 28 June 2016 Mr Tropoulos’ lawyers wrote again to Journey Lawyers, enclosing a report of Dr Geffen, and seeking confirmation that Mr Tropoulos’ employment conditions as they existed prior to his absence on sick leave remained the conditions on which he would resume his employment. In particular, confirmation was sought that his position title remained “Senior Associate”, that his salary remained at $120,000 per annum plus superannuation, and that the bonus system and his office would be commensurate with those conditions of employment prior to his sick leave. In that letter Mr Tropoulos indicated a preparedness to return to work on a graduated return to work program on 25 July 2016.
45 Relevantly, in the attached report dated 20 May 2016 Dr Geffen stated as follows:
Steven has been unfit for work since August 2015 as a result of Major Depressive Episode for which he has been receiving treatment from me. I have been treating Steven intensely over the past 10 months with Steven most recently seeing me on 20/5/16 where he presented with improvement of his medical condition and is in a state where he is able to return to work in normal circumstances. However, Steven has informed me that recent developments in the ongoing workplace dispute with his employer have left Steven with many uncertainties regarding his employment.
It is my opinion that these uncertainties have already had a detrimental effect on his mental health since March 2016, and are having a continuing detrimental effect on his mental health. These difficulties pose a significant risk to his health if they are unresolved prior to his return to work (RTW).
The uncertainties regarding Steven’s employment, which according to him involve his salary, position/title and duties, need to resolved to achieve a successful return to work. Once this has been addressed I believe Steven will be in a position to be fit to return to work (RTW) within two weeks as part of a RTW program (as would be appropriate for any employee who has been off work for an extended period).
I suggest this RTW program proceeds as follows:
1. Commence with work re-familiarisation process over 1-2 days
a. Face to face meeting with practice principals
b. Meeting with staff to address health and return to work
c. Receive a reminder/update on computer systems for workflow
2. Begin working in role at 4 days per week x 4 hours in morning for two weeks (suitable for most duties except court appearances)
3. Increase to 4 days per week x 6 hours for two weeks (no restriction of duties)
4. Increase to 4 days per week x 8 hours for two weeks (no restriction of duties)
5. Consider with employer options of working 0.8 FTE v 1.0 FTE depending on progress of RTW and suitability for both parties (no restrictions of duties).
I trust this will form the basis of a positive return to working relationships as prior to the illness Steve was highly functional and highly valued.
46 In a letter dated 7 July 2016 Journey Lawyers wrote to Susan Moriarty & Associates, noting that Mr Tropoulos was still employed by Journey Lawyers and that they proposed to pay for his practising certificate. Further, the letter stated:
As for the remainder of the contents of your correspondence, we refer you to the letter to you dated 6 May 2016 from Bennett & Philp, Lawyers. That letter sets out our position. Please advise us at the point when your client is able to provide a medical certificate certifying that he is able to return to work and carry our his duties in accordance with his contract. The certificate provided in your correspondence indicates indeed, that he is not fit to return to work and carry out his duties in accordance with his contract.
Any discussion as to your client returning to work is premature until we receive medical certification that he is fit to return to work and carry out the obligations contained in his written contract of employment
47 In a letter dated 20 July 2016 Susan Moriarty & Associates on behalf of Mr Tropoulos wrote to Journey Lawyers, referring to cl 25 of Mr Tropoulos’ contract of employment and stating that the letter should be treated as written notification from Mr Tropoulos of a dispute involving Journey Lawyers as contemplated by the contract. The letter continued:
The terms of the dispute for which Mr Tropoulos has instructed us to invoke clause 25 are as follows:
1. The refusal to discuss, or instate, a graduated return to work rehabilitation program as outlined in our letter to Bennet and Philp lawyers dated 29 March 2016 and identified as necessary to the recovery of Mr Tropoulos’ medical condition by his treating psychiatrist Dr Geffen.
2. Because of Mr Tropoulos’ medical condition and absence on sick leave, a decision was made by Journey Lawyers to:
a. Alter his substantive position;
b. Reduce his annual salary; and
c. Require our client’s work to be supervised by a colleague who would not possess the level of seniority or experience
3. Refusal by Journey to discuss our client’s return to work and conditions of employment until he provided a medical certificate indicating precisely the date Mr Tropoulos would be fit to return to work despite being informed that our client’s full recovery of his mental health depended – and depends – upon the removal of the continuing uncertainty relating to his employment conditions.
48 The letter continued, nominating three possible mediators, and further referred to the legal costs that Mr Tropoulos had incurred in seeking to enforce his rights.
49 In response to the letter from Susan Moriarty & Associates of 20 July 2016, Journey Lawyers wrote, materially, as follows:
With respect, the obligation on your client to provide a Medical Certificate under the terms of the contract is not a matter of negotiation. It is a question of fact.
Until your client provides that Medical Certificate confirming he is fit to carry out his obligations, there is no point in discussing his return to work. Neither is there any point in Mediation until we have a certificate as detailed above.
As for the issues raised in the last paragraphs of your letter, with respect, your client initiated a legal process; in view of your clients’ attitude, we have re-affirmed in previous correspondence on a number of occasions that we will be adhering strictly to the terms of the employment contract….
13. Letter of 30 September 2016
50 On 16 September 2016 Mr Tropoulos filed a complaint with the Commission claiming that he had been discriminated against as a result of his disability. In a letter dated 30 September 2016 Journey Lawyers wrote to Susan Moriarty & Associates in the following terms:
I refer to the above and your client’s Application for Disability Discrimination.
Mr Tropoulos [sic] actions suggests that he is not proposing to return to work with this Firm. We note that this is a decision he has made rather than this Firm.
His confirmation that he has a disability now raises the issue [sic] his fitness to have a Practicing Certificate now and in the recent past since he voluntarily stopped attending our office to work.
Our position has been that if he provides a medical certificate that he is fit to perform his duties as a Queensland Legal Practitioner he could feel free to return to work. He has never supplied such a certificate and now it is a matter that is best handled by the Queensland Law Society.
Under Section 117 of the Legal Profession Act 2007, I have a positive obligation as a director of an incorporated legal practice, to ensure that a breach of the Legal Profession Act 2007 does not occur by an Australian legal practitioner.
Section 51 of the Legal Profession Act 2007 provides that for a person to hold a practicing certificate, they must be a “fit and proper” person. The suitability issues are addressed in Section 9 (1)(m) and 46 (20 [sic](g). The case of Skerrit V the Legal Practices Board of Western Australia reviewed the issue of health and it was clearly relevant for the purposes of whether a person was “fit and proper” to hold a practicing certificate. (Section 87 provides the process where the Queensland Law Society may conduct an assessment on your client’s capacity).
Your client has not practiced for a considerable period due to a medical condition which may affect his capability. We have always insisted on him providing a medical certificate prior to him returning to work, to ensure he was not in breach of the requirements of the Legal Profession Act 2007. This would have satisfied our obligations (and your clients professional obligations) to ensure he was a “fit and proper” person. We note for the record that such medical certificate has not been provided.
For this Firm to condone a person practicing as a solicitor and hold themselves as a “fit and proper” person would be a breach of section 418 and possibly s419 of the Legal Profession Act 2007 if indeed they were not capable of carrying out their duties. Further, under Section 3 of the Australian Solicitors Conduct Rules 2012, our duty to the Courts and the administration of justice is “paramount”.
Whilst your client apparently filled out the declaration to the Queensland Law Society including the declaration that he was a “fit and proper” person, it was this Firm that paid the fees and this makes this Firm an unwitting party to your client’s representations to the Queensland Law Society that he is fit to practice.
Your client has not only failed to provide a medical certificate as to his fitness to practice, as requested by us all along, but has also declared through his actions that he actually has a disability that could impact his ability to practice.
In these circumstances, we now have a legal obligation to notify the Queensland Law Society to the effect that your client has been unable to provide a medical certificate and they may in fact need to consider conducting an examination/suitability review to assess whether your client is suitable to continue to hold a practicing certificate at this current time.
The purpose of this letter is to give your client suitable notice of our intended action to notify the Queensland Law Society…
The Australian Human Rights Commission proceeding
51 On 30 September 2016 Mr Tropoulos requested leave to amend the complaint he filed on 16 September 2016 to add an allegation of victimisation. On 4 October 2016 he was granted leave to do so.
52 The complaint alleged contraventions of s 5 of the DD Act. A conciliation conference was held on 30 November 2016. By letter dated 5 December 2016, a delegate of the President of the Commission terminated the complaint pursuant to s 46PH(1)(i) of the AHRC Act on the basis the delegate was satisfied there was no reasonable prospect of the matter being settled by conciliation.
53 In his complaint to the Commission, Mr Tropoulos materially stated as follows:
Contraventions of Section 5 of the Act
20. The Complainant contends that:
a. The Respondent’s unilateral alteration of his employment contract as indicated in the 24 February 2016 email, in which:
(i) the Complainant’s annual salary was reduced from $120,000.00 to $75,000.00;
(ii) the Complainant’s role was changed from Senior Associate to Family Lawyer; and
(iii) the Complainant’s office was given to another lawyer;
was done so on the basis of his extended absence for mental health reasons. This action constitutes treatment of the Complainant by the Respondent that is less favourable than the treatment of persons also employed by the Respondent who do not have a disability.
b. The Respondent’s unwillingness to negotiate on a return to work date or a graduated return to work program as exhibited in the correspondence between the Complainant and the Respondent from the period of March – July 2016 constitutes a breach of section 5(2)(a) of the Act by not making or proposing to make reasonable adjustments for the Complainant.
c. The above also constitutes a breach of section 15(2)(a) and 15(2)(d) of the Act.
The Remedies sought by the Complainant
21. The Complainant has suffered loss and damage as a result of the Respondent’s contraventions of the Act, namely:
a. Detriment to his mental health, wellbeing and ability to improve upon this condition;
b. Embarrassment and humiliation as a result of the demotion from Senior Associate to Senior Family Lawyer and the loss of his private office.
c. Past economic loss as a consequence of being forced to being unable to return to work as a result of the unlawful discrimination by the Respondent.
d. Future Economic loss as a consequence of the Complainant being forced to take unpaid sick leave as a result of the unlawful discrimination by the Respondent.
22. The Complainant seeks the following remedies:
a. Either:
i. the Respondent return the Complainant to the same identical employment conditions existing prior 18 August 2015; or
ii. in the event the continuing employment relationship is impracticable – compensation for future economic loss being the Complainant’s wages for a period of 2 years.
b. That the Respondent pay the Complainant compensation for costs incurred as a direct result of the Respondent’s contraventions of the Act.
c. That the Respondent pay the Complainant compensation for loss or damage suffered by the Complainant caused by contraventions of the Act.
Total and Permanent Disability
54 On 6 December 2017 Mr Tropoulos made a claim for total and permanent disability through his superannuation (the TPD Claim) on the basis that he was now permanently unfit for work. During the hearing of this proceeding, Mr Tropoulos confirmed that on 27 February 2018 he had received a payout of $480,000 following an assessment that he was totally and permanently incapacitated.
55 The case of the applicant can be found primarily in the following paragraphs in his amended statement of claim:
19. On 22 September 2015, the first respondent failed to follow Dr Geffen’s return to work program and implemented its own program and thereby failed to make reasonable adjustments for the applicant in the terms and conditions of his employment or alternatively, failed to make reasonable adjustments by subjecting the applicant to a detriment or alternatively, failed to make reasonable adjustments by denying the application benefits associated with his employment in that –
(a) the applicant was required to attend work at the first respondent’s workplace between the hours of 8.30 am and 5.00 pm on three alternate days;
(b) he was required to carry out work as if he was not subject to a disability;
(c) The first respondent did not organise a briefing about the client files being attended to by the applicant prior to his absence since 18 August 2015.
(d) The first respondent failed to provide any information about administrative or staffing changes which had occurred while the applicant had been absent from 18 August 2015 to 22 September 2015.
20. By failing to make the reasonable adjustments as referred to in paragraph 19, the first respondent treated the applicant less favourably than a person without the applicant’s disability would have been treated in circumstances that were not materially different in that such a person would:
(a) not have been required to attend work at the first respondent’s workplace between the hours of 8.30 am and 5.00 pm;
(b) have been required to carry out work as if he was not subject to the applicant’s disability;
(c) have received a briefing about client files being attended to by that person prior to their absence since 18 August 2015; and
(d) have been provided with information about administrative or staffing changes which had occurred while the person had been absent from 18 August 2015 to 22 September.
21. By the first respondent’s conduct set out in paragraph 19, the first respondent unlawfully discriminates against the applicant in breach of section 15 Disability Discrimination Act 1992.
…
26. By the email of 2 October 2015, the first and second respondents informed the applicant that it had not made or proposed to make reasonable adjustments for the applicant in the terms and conditions of his employment or alternatively, was subjecting or proposing to subject the applicant to a detriment or alternatively, denied or proposed to deny benefits associated with the applicant’s employment in that:
(a) it reallocated clients previously attended to by the applicant to other lawyers of the first respondent;
(b) in the future, he would be allocated legal aid clients of the first respondent;
(c) that a graduated return to work program involving reduced hours per day was unworkable; and
(d) that a graduated return to work program involving working 3 days per week was the first respondent’s strong preference.
27. By failing to make, or proposing that it would not make the reasonable adjustments referred to in paragraph 26, the first and second respondents treated the applicant less favourably than a person without the applicant’s disability would have been treated in circumstances that were not materially different in that such a person would
(a) not have had his clients reallocated to other lawyers;
(b) bot have legal aid clients allocated to him;
(c) would have been provided with a graduated return to work program involving reduced hours
(d) have been provided with a graduated return to work program which accommodated the applicant’s disability;
28. By their conduct set out in paragraph 26, the first … respondents unlawfully discriminated against the applicant in breach of s 15 Disability Discrimination Act 1992.
29. On 2 October 2015, the applicant responded to the second respondent’s email advising, inter alia, -
a. He was undertaking informal refresher studies of family law legislation and cases in preparation for his return to work;
b. He anticipated clearance to recommence work on 19 October 2015.
30. On 13 October, 2015 the applicant forwarded a letter by Dr Geffen to the second respondent and the first respondent’s Practice Manager clearing him for participation in a graduated return to work program of two weeks’ duration and involving ‘a moderate and manageable workload and regular breaks’.
31. On 13 October 2015, Ms Hawley wrote to the applicant confirming his graduated return to work on three days per week ‘the same as last time’.
32. On 21 October 2015, the applicant commenced a second graduated return to work program working on alternative days.
33. On 21 October 2015, the first respondent failed to make reasonable adjustments for the applicant by subjecting the applicant to a detriment or alternatively, failed to make reasonable adjustments for the applicant by denying him the benefits associated with his employment in that
(a) The applicant was directed to instruct Counsel at court immediately on his arrival at work;
(b) The applicant was required to attend work at the first respondent’s workplace between the hours of 8.30 am and 5.00 pm on alternate days;
(c) He was required to carry out work as if he was not subject to a disability;
(d) He was told he was to be scrutinised
(e) The first respondent did not organise a briefing about the client files being attended to by the applicant prior to his absence since 23 September 2015;
(f) The first respondent failed to provide any information about administrative or staffing changes which had occurred while the applicant had been absent from 23 September 2015 to 20 October 2015
34. By failing to make the reasonable adjustments as referred to in paragraph 33, the first respondent treated the applicant less favourably than a person without the applicant’s disability would have been treated in circumstances that were not materially different in that such a person would:
(a) not have been required to instruct Counsel in court on their first day back at work;
(b) not have been required to attend work at the first respondent’s workplace between the hours of 8.30 am and 5.00 pm on alternate days;
(c) not be required to carry out work as if he was not subject to a disability;
(d) not be told that he would be scrutinised;
(e) have received a briefing about the client files being attended to by the applicant prior to their absence since 23 September 2015; and
(f) have been provided with information about administrative or staffing changes which had occurred while that person had been absence from 23 September 2015 to 20 October 2015
35. By the first respondent’s conduct set out in paragraph 33, the first respondent unlawfully discriminated against the applicant in breach of s 15 Disability Discrimination Act 1992.
…
44. By the email of 9 February 2016, the second respondent on behalf of himself and the first respondent informed the applicant that they did not propose to make reasonable adjustments for the applicant in the terms and conditions of his employment or alternatively, did not propose to make reasonable adjustments for the applicant by subjecting the applicant to a detriment or alternatively, did not propose to make reasonable adjustments for the applicant through denying him benefits associated with the applicant’s employment in that:-
(a) the applicant would not be reinstated to his substantive role but instead would be demoted to a family lawyer role with consequential loss of salary and benefits;
(b) the applicant would no longer have the role and title of ‘Senior Associate’.
(c) the applicant’s return to work should suit the respondents’ staffing arrangements.
45. By proposing not to make reasonable adjustments as referred to in paragraph 44, the first and second respondents treated the applicant less favourably than a person without the applicant’s disability would have been treated in circumstances that were not materially different in that such a person would –
(a) not lose his substantive role and be demoted to a family lawyer role with consequential loss of salary and benefits; and
(b) continue to have the role and title of ‘Senior Associate’.
(c) have returned to work on the date certified for that purpose by a medical specialist.
46. By the conduct set out in paragraph 44, the first and second paragraphs discriminated against the applicant in breach of s 15 Disability Discrimination Act 1992.
…
49. On 24 February 2016, the second respondent on behalf of himself and the first respondent informed the applicant that:-
a. his removal from the position of ‘Senior Associate’;
b. his removal from his office;
c. a decrease in salary from $120,000 to $75,000
d. all new client interviews would be under the supervision of another lawyer;
e. all work would be supervised by the second respondent or his delegate;
f. he would be expected to assist other lawyers at their direction;
g. it was the applicant’s sole responsibility to develop up a full working case-load;
h. the return to work date of 4 March 2016 was unsuitable to the first respondent, would be postponed to beginning May 2016 to suit the organisational convenience of the respondents and would be on a three (3) day per week basis;
i. these detriments were necessary to ensure the applicant –
I. met client expectations of competence and professionalism;
II. conformed to the first respondent’s standards;
III. carried out his work in a professional manner;
j. his termination of employment was in contemplation if he refused to postpone his return to work until beginning May 2016.
50. By their conduct set out in paragraph 49, the first and second respondents failed to make reasonable adjustments fort [sic] the applicant in the terms and conditions of his employment, or alternatively failed to make reasonable adjustments for the applicant by subjecting him to a detriment or alternatively failed to make reasonable adjustments for the applicant by denying him the benefits associated with his employment.
51. By failing to make the reasonable adjustments as referred to in paragraph 49, the first and second respondents treated the applicant less favourably than a person without the applicant’s disability would have been treated in circumstances that were not materially different in that such a person:-
(a) would not have been removed from the position of ‘Senior Associate’;
(b) would not have been removed from his office;
(c) would not have had his salary decreased from $120,000 to $75,000;
(d) would not have had all new client interviews conducted under the supervision of another lawyer;
(e) would not have all his work supervised by the second respondent or his delegate;
(f) would not have been expected to assist other lawyers at their direction;
(g) would not have been expected to exercise sole responsibility for developing a full working case load;
(h) would not have had his return to work date postponed until May 2016;
(i) would not have been told that these detriments were necessary to ensure the applicant –
a. met client expectations of competence and professionalism;
b. conformed to the first respondent’s standards;
c. carried out his work in a professional manner;
(j) would not have been told that his termination of employment was in contemplation if he refused to postpone his return to work.
52. By the first and second respondent’s conduct set out in paragraph 49, the first and second respondent unlawfully discriminated against the applicant in breach of section 15 of the Disability Discrimination Act 1992.
…
64. On 20 July 2016, the applicant’s solicitors formally wrote on behalf of the applicant to the first respondent requesting a mediation under clause 25 of his Employment Contract with the first respondent
Particulars
Clause 25 of the Contract imposes a mandatory obligation on the parties to submit to mediation in the event a dispute between the parties had not been resolved through negotiation.
65. On 27 July 2016, the second respondent on behalf of himself and the first respondent wrote to the applicant’s solicitors refusing to engage in mediation.
66. By their conduct set out in 65 [sic], the first and second respondents failed to make reasonable adjustments for the applicant in the terms and conditions of his employment or alternatively, failed to make reasonable adjustments for the applicant by subjecting him to a detriment or alternatively, failed to make reasonable adjustments to the applicant by denying him the benefits associated with his employment
67. By failing to make the reasonable adjustments in paragraph 65, the first and second respondents treated the applicant less favourably than a person without the applicant’s disability would have been treated in circumstances which were not materially different because such a person would not have been denied a mediation under clause 25 of the Employment Contract.
68. By the first and second respondents conduct set out in paragraph 65, the first and second respondents unlawfully discriminated against the applicant in breach of s 15 Disability Discrimination Act 1992.
(Amendment formatting omitted.)
56 Journey Lawyers denies that, by failing to make the reasonable adjustments alleged by Mr Tropoulos, it treated Mr Tropoulos less favourably than a person without his disability would have been treated in circumstances that were not materially different. In its amended defence, Journey Lawyers primary relies on the following:
the adjustments proposed by Mr Tropoulos were not reasonable in that they would lead to unjustifiable hardship to the firm on account of the nature of its legal practice; and
even if the adjustments were reasonable and, therefore, required to be made, Mr Tropoulos would not, in any case, be able to fulfil the inherent requirements of the particular work that he undertook with Journey Lawyers.
57 Paragraph 9 of the amended defence contains the essence of the respondent’s case in respect of “reasonable adjustments”:
9. The “reasonable adjustments” which Tropoulos contends that Journey ought to have made for his convenience and benefit:
(a) are contrary to the terms of the Employment Contract;
(b) would be more generous to Tropoulos than any “adjustment” which Journey would willingly have made for the convenience and benefit of any other member of Journey’s professional staff, regardless of:
(i) the circumstances; and
(ii) any disability;
(c) would have prejudiced the Respondents’ ability to discharge their professional obligations at Common Law, under the LPA, and under the ASCR;
(d) would have prejudiced the reasonable and commercial interests of Journey, as set forth in Part VI of this pleading;
(e) would have imposed an unjustifiable hardship on each of the Respondents; and
(f) in the premises:
(i) are not “reasonable adjustments” within the meaning of the DDA; and
(ii) under section 21A of the DDA, are not “reasonable adjustments” which the Respondents had any obligation to make for the convenience and benefit of Tropoulos.
58 The amended defence further pleads that Mr Tropoulos was not able to carry out the inherent requirements of the particular work that he undertook with the respondent. In particular:
19. At all times material to this proceeding:
(a) it has been and it remain a common feature of Family Law clients that they find themselves – frequently, for the first time in their lives – in circumstances:
(i) of heightened emotional vulnerability; and
(ii) further or alternatively, of unaccustomed financial austerity; and
(iii) further or in the further alternative, of extreme anxiety; and
(iv) further or in the further alternative, of great distress;
(b) moreover, Family Law clients sometimes either:
(i) are in jeopardy of domestic violence; or
(ii) apprehend that they are in jeopardy or domestic violence; and
(c) a special relationship of trust, confidence and personal dependency therefore routinely arises between a Family Law client and the legal practitioner handling the client’s file.
20. For the reasons set forth in paragraph 19 of this pleading, Family Law clients usually have a reasonable expectation:
(a) that the client:
(i) will have ongoing access to the legal practitioner handling the client’s file;
(ii) in particular, will have timely access to the legal practitioner handling the client’s file when urgent or unforeseen exigencies cause concern to the client; and
(iii) will not have his or her file transferred, more often than necessary, between different legal practitioners; and
(b) specifically, where the legal practitioner handling the client’s file had advised the client to pursue a particular course of action (such as making an application to a court), that the same legal practitioner:
(i) will generally see that course of action through to completion; and
(ii) will be available to explain the outcome to the client, especially when the outcome is less favourable for the client than had been anticipated.
21. Some areas of legal practice are more conducive than others to part-time or fractional employment, such that:
(a) areas of legal practice which are generally more conducive to part-time or fractional employment include:
(i) conveyancing and property law;
(ii) securities;
(iii) corporate and commercial;
(iv) intellectual property;
(v) employment law;
(vi) immigration law;
(vii) mining and resources; and
(viii) tax; and
(b) areas of legal practice which are generally less conducive to part-time or fractional employment include any area of legal practice involving litigation, such as:
(i) criminal law;
(ii) personal injuries;
(iii) commercial litigation;
(iv) planning and environment; and
(v) Family Law.
22. The reasons why Family Law (in particular) is generally not conducive to part-time or fractional employment, and especially part-time or fractional employment comprising less than the minimum acceptable working hours, are:
(a) in most courts and tribunals, there is only limited scope for listing matters on a date and at a time which is suitable to a part-time or fractional employee;
(b) major litigious matters often take more than one day, further limiting the scope for listing matters on a date and at a time which is suitable to a part-time or fractional employee;
(c) even for a litigious matter which is not expected to take more than one day, preparation for a hearing generally requires the availability, in the lead-up to the hearing, of the legal practitioner handling the client’s file;
(d) a Family Law practitioner who does not regularly participate in court proceedings:
(i) tends to lose touch, generally, with the practice and jurisprudence of the courts which exercise jurisdiction in Family Law;
(ii) tends to lose touch, in particular, with the attitude and disposition of such courts, and of individual judges thereof, towards the exercise of discretionary powers; and
(iii) therefore becomes less capable of providing competent advice to Family Law clients; and
(e) in addition, part-time or fractional employment is not compatible with the reasonable expectations of clients, as set for in paragraph 20 of this pleading.
23. At all times material to this proceeding:
(a) success as a Family Law practitioner depended upon:
(i) the practitioner’s ability to provide sound, competent, reliable and dispassionate legal advice in Family Law; and
(ii) the practitioner’s behaving in a manner consonant with the special relationship of trust, confidence and personal dependency set forth in subparagraph 19(c) of this pleading; and
(b) the most vital attributes for a successful Family Law practitioner therefore relevantly included:
(i) soundness and reliability of the practitioner’s thought processes;
(ii) emotional stability;
(iii) good judgement; and
(iv) an even temperament.
…
26. In the premises set forth in the preceding paragraphs in Part III of this pleading, the inherent requirements of the employment of Tropoulos by Journey, within the meaning of section 21A of the DDA:
(a) relevantly included:
(i) the ability to work on a full-time basis, or on a part-time or fractional basis comprising not less than the minimum acceptable working hours, rather than on a part-time or fractional basis of less than the minimum acceptable working hours;
(ii) soundness and reliability of his thought processes;
(iii) emotional stability;
(iv) good judgement; and
(v) an even temperament; and
(b) were therefore inconsistent with:
(i) the inability of Tropoulos to work on a full-time basis, or on a part-time or fractional basis comprising not less than the minimum acceptable working hours, rather than on a part-time or fractional basis of less than the minimum acceptable working hours;
(ii) Tropoulos being susceptible to adverse affection of his thought processes, emotions and judgement (as alleged in paragraph 10 of the Amended Statement of Claim); or
(iii) the propensity of Tropoulos (as also alleged in paragraph 10 of the Amended Statement of Claim) to engage in disturbed behaviour.
27. Further in the premises set forth in the preceding paragraphs in Part III of this pleading, and if the facts alleged in paragraphs 8 and 10 of the Amended Statement of Claim are true, either:
(a) despite his qualifications and experience, Tropoulos is, to all intents and purposes, unemployable as a Family Law practitioner; or
(b) alternatively, if Tropoulos is employable as a Family Law practitioner, he has failed to mitigate any loss or damage which he has suffered, by seeking and obtaining such employment.
…
28. At the time when Tropoulos was first employed by Journey (on or about 24 February 2012):
(a) Journey was seeking:
(i) a senior solicitor, capable of working on his own files without regular or ongoing supervision; and
(ii) a full-time employee, rather than a part-time or fractional employee; and
(iii) an employee who was not susceptible to adverse affection of the employee’s thought processes, emotions and judgement; and
(iv) an employee who was not subject to a propensity to engage in disturbed behaviour;
(b) Journey employed Tropoulos on the understanding, in the belief, and without any reason to suppose the contrary, that Tropoulos:
(i) satisfied those criteria; and
(ii) was likely to continue to satisfy those criteria.
29. Tropoulos did not disclose to the Respondents, prior to his being employed by Journey, or at any time thereafter until Journey received Geffen’s 13 August 2015 email:
(a) as alleged in paragraph 8 of the Amended Statement of Claim:
(i) that Tropoulos was then suffering from the alleged mental illness; or
(ii) that Tropoulos had been suffering from the alleged mental illness since his late teenage years; or
(iii) that the management of the alleged mental illness required a combination of medication and therapeutic counselling; or
(iv) that Tropoulos had been under ongoing specialist psychiatric care, as at 24 February 2012, for at least 6 years; or
(b) as alleged in paragraph 10 of the Amended Statement of Claim:
(i) that Tropoulos was then susceptible to adverse affection of his thought processes, emotions and judgement; or
(ii) that Tropoulos was then subject to a propensity to engage in disturbed behaviour.
30. At all times material to this proceeding:
(a) there has been an over-supply of law graduates and qualified solicitors seeking employment in South-East Queensland; and
(b) that over-supply has been most acute in the case of law graduates and qualified solicitors seeking employment on a part-time or fractional basis, whether:
(i) as a lifestyle choice; or
(ii) due to family commitments; or
(iii) for health reasons; or
(iv) for some other reason.
…
39. In the premises of:
(a) the inability of Tropoulos to work on a full-time basis, or on a part-time or fractional basis comprising not less than the minimum acceptable working hours, rather than on a part-time or fractional basis of less than the minimum acceptable working hours;
(b) Tropoulos being susceptible to adverse affection of his thought processes, emotions and judgement, as alleged in paragraph 10 of the Amended Statement of Claim (if true); and
(c) Tropoulos being subject to a propensity to engage in disturbed behaviour, as further alleged in paragraph 10 of the Amended Statement of Claim (if true),
at all times material to this proceeding, it was reasonably apparent that Tropoulos may, from time to time, fail to:
(i) act in the best interests of a client; or
(ii) deliver legal services competently, diligently, and as promptly as reasonably possible; or
(iii) refrain from committing conduct which may diminish the client’s confidence in the administration of justice; or
(iv) provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter.
40. In the premises set forth in paragraph 39 of this pleading:
(a) an incorporated legal practice which was aware of those premises could not permit the practice to employ Tropoulos as a Family Law practitioner, consistently with the professional duties of a legal practitioner at Common Law, under the LPA, and under the ASCR; and
(b) a legal practitioner director of an incorporated legal practice who was aware of those premises could not permit the practice to employ Tropoulos as a Family Law practitioner, consistently with:
(i) the professional duties of a legal practitioner at Common Law, under the LPA, and under the ASCR; and
(ii) the duties of a legal practitioner director of an incorporated legal practice under section 117 of the LPA.
…
41. The nature of the Journey’s incorporated legal practice, as set forth in paragraphs 17 and 18 of this pleading, has the consequences that:
(a) it is unusual for Journey to receive “repeat business” from former clients;
(b) the most effective and salutary promotion of the practice is by recommendations and “word of mouth” from satisfied previous clients;
(c) a significant proportion of Journey’s clientele is attracted as a result of such recommendations and “word of mouth”; and
(d) if previous clients were to “bad mouth” or deprecate Journey or the service provided by Journey, that would likely:
(i) have a substantial negative impact on Journey’s capacity to attract new clientele; and
(ii) deprive Journey of a substantial part of the commercial benefit of advertising conducted by Journey and on its behalf.
42. Factors critical to Journey’s achieving satisfaction amongst its clients include the ability of Journey, and of all Family Law practitioners employed by Journey, to:
(a) behave in a manner consonant with the special relationship of trust, confidence and personal dependency set forth in subparagraph 19(c) of this pleading; and
(b) meet the reasonable expectations set forth in paragraph 20 of this pleading.
43. Were Journey, and each of the Family Law practitioners employed by Journey, unable to fulfil the factors set forth in paragraph 42 of this pleading, that would have a substantial detrimental impact on:
(a) the level of satisfaction amongst Journey’s clients;
(b) the likelihood that Journey’s clients may continue to recommend Journey, or promote Journey’s practice by “word of mouth”;
(c) Journey’s ability to attract new clients;
(d) Journey’s capacity to conduct a financially successful and profitable practice; and
(e) Journey’s capacity to meet its financial commitments, including the payment of salaries and other benefits to Journey’s staff.
44. In the premises of:
(a) the inability of Tropoulos to work on a full-time basis, or on a part-time or fractional basis comprising not less than the minimum acceptable working hours, rather than on a part-time or fractional basis of less than the minimum acceptable working hours;
(b) Tropoulos being susceptible to adverse affection of his thought processes, emotions and judgement, as alleged in paragraph 10 of the Amended Statement of Claim (if true); and
(c) Tropoulos being subject to a propensity to engage in disturbed behaviour, as further alleged in paragraph 10 of the Amended Statement of Claim (if true),
at all times material to this proceeding, Tropoulos lacked the ability to:
(i) behave in a manner consonant with the special relationship of trust, confidence and personal dependency set forth in subparagraph 19(c) of this pleading; and
(ii) meet the reasonable expectations of clients set forth in paragraph 20 of this pleading.
(Amendment formatting omitted.)
59 Mr Tropoulos gave evidence in affidavits dated 15 May 2017, 13 June 2017, 20 September 2017, 2 November 2017, 8 November 2017 and 14 February 2018. Mr Tropoulos also gave evidence under cross-examination at the hearing.
60 In relation to the first attempted return to work, Mr Tropoulos deposed, materially:
Upon his return on 22 September 2015, he did not receive an acknowledgement that he had been ill, a briefing or a handover. Mr Tropoulos did not feel entirely welcome.
On the evening of 22 September 2015, Mr Tropoulos suffered a relapse while at home. Mr Tropoulos emailed Ms Hawley to advise the respondent of the relapse and that he would not attend work the following morning.
On 24 September 2015, Mr Tropoulos sent Ms Hawley a fact sheet which explained the incidence of depression and the ways in which depression can be prevented, with specific references to how workplaces are best to respond to an employee with a mental health issue. Mr Tropoulos described this as a “diplomatic effort to educate Ms Hawley as Practice Manager about [his] condition…”
On 27 September 2015, Mr Tropoulos emailed Ms Hawley to advise her that he intended calling into the office to collect his passport application and supporting documentation. Mr Tropoulos stated that Ms Hawley told him not to make a habit out of calling into the office.
The email from Mr Galvin of 2 October 2015 made him feel anxious and unsupported. Mr Tropoulos knew that Dr Geffen had regularly liaised with Mr Galvin and Ms Hawley about his progress and return to work. Mr Tropoulos felt that the nature and timing of his second attempted return to work would not be open for discussion, he felt defeated, and concluded that there was no point in objecting to Mr Galvin’s decisions. In light of this, Mr Tropoulos emailed Mr Galvin on the same day, and describes that he purposefully adopted a submissive and pacifying response, because he was afraid that an argumentative response might result in termination of his employment.
61 In relation to the second attempt to return to work, Mr Tropoulos deposed:
He could function at work, but felt anxious and “foggy”. Mr Tropoulos believed that he was still not fully recovered, and attributed this to the email received from Mr Galvin on 2 October 2015, which Mr Tropoulos said made him preoccupied and fearful that his employment was in jeopardy.
He was not provided with any form of handover, induction or refresher about developments during his absence, upon his return to Journey Lawyers.
Neither Mr Galvin nor Ms Hawley enquired about Mr Tropoulos’ welfare or state of mind upon his return to work.
Upon his return to work Mr Galvin instructed Mr Tropoulos to go to court to instruct Mrs Lynette Galvin. Mr Tropoulos stated that he had no idea who the client was or what their file was about. Mr Tropoulos stated that Mr Galvin became angry and flustered when Mr Tropoulos questioned this. Mr Tropoulos recalled Mr Galvin saying, “We’ll be watching you,” and Mr Tropoulos was fearful as to whom “we” referred.
Mr Tropoulos stated that he tried to do everything his contract required, as well as specific tasks that Mr Galvin asked him to do.
Mr Tropoulos felt excluded and pressured to perform in the same way that he had prior to his relapse.
Mr Tropoulos was disappointed that no account of his contribution to the firm’s profitability for nearly four years seemed to be have been acknowledged in offering him a genuinely supportive program to return to full functioning. Mr Tropoulos did not think that any account of his long absence on sick leave had been factored in when contemplating what he should be reasonably asked to do on a graduated return to work program.
The work program came to an end when Mr Tropoulos relapsed, and he recommenced sick leave from 9 December 2015.
During the period from 21 October 2015 to 8 December 2015, Mr Galvin never once asked how Mr Tropoulos was or how Mr Tropoulos was coping.
62 In relation to events subsequent to the second attempted return to work, Mr Tropoulos deposed:
On 9 December 2015, Mr Galvin emailed Dr Geffen and copied Mr Tropoulos. Mr Tropoulos said that he recalls reading the email alone, and being “gripped by panic and spiralling”.
Mr Tropoulos was hospitalised on 10 December 2015. Mr Tropoulos’ private health insurance did not cover psychiatric admission so Mr Tropoulos was required to find $7,000 to pay for the hospitalisation.
Mr Tropoulos underwent ECT on “almost every other day” throughout his hospitalisation. Mr Tropoulos was discharged from Toowong Private Hospital on 14 January 2016 and continued to receive ECT on an outpatient basis.
On 19 January 2016, Dr Geffen wrote to Ms Hawley foreshadowing Mr Tropoulos’ return to work on 4 March 2016. Ms Hawley responded on instructions from Mr Galvin set out in an email dated 9 February 2015. Mr Tropoulos deposed that he was gripped by panic when he read that email.
On 16 February 2016 Dr Geffen wrote to Ms Hawley stating that the timing of Mr Tropoulos’ return to work should be contingent on his fitness rather than on organisational issues.
63 Mr Tropoulos deposed that on 24 February 2016 Mr Galvin formalised the variations to his contract of employment which were foreshadowed in Ms Hawley’s email to Dr Geffen of 9 February 2016. Mr Tropoulos deposed that he was “shattered” by this.
64 Mr Tropoulos deposed that, in describing himself as “fully functional” in his work as a solicitor, he referred to such duties as giving advice, generating correspondence, producing documents (whether court documents or settlement documents), supervision, preparation and appearance for interim hearings and mentions, and instructing counsel for trials. He said that before he became ill he usually worked from approximately 7.45 am until between 6.00 pm and 8.00 pm depending on his daily court diary.
65 In his affidavit of 2 November 2017 in relation to instructing Counsel in Court, Mr Tropoulos deposed:
14. As to paragraph 38 of my affidavit, when I refer to the fact: ‘I had no idea who the client was. I had no idea what their file was about’, I mean one would have needed to take instructions about a file prior to court. I literally had not met the client, was completely unfamiliar with the matter and the purpose of the court proceedings. Not knowing the client, the file, or having no instructions made me feel very anxious. Additionally, when attending court there are no regular breaks. One of Dr Geffen’s recommendations to me was that I take regular breaks and instructing in Court limited the breaks I could take. In Court, I was writing notes down about the matter in order to gain knowledge of it. In my time at Journey no other lawyer had been requested to instruct Counsel at the last minute without knowing anything about the case or client, other than the second Respondent who would only instruct if someone was away.
66 I note that there was no dispute as to aspects of Mr Tropoulos’ evidence, being the dates on which Mr Tropoulos worked, the type and dates of treatment received by Mr Tropoulos, and the existence of Mr Tropoulos’ disability. These assertions are supported by appropriate documentation and are corroborated by other witnesses, including Mr Galvin who was called for the respondent.
67 In Court, I considered that Mr Tropoulos was an honest witness. He appeared emotionally fragile such that it was necessary to have short breaks, however he was able to sustain cross-examination over a two-day period. However the respondent, although not pressing that the evidence of Mr Tropoulos was “deliberately mendacious”, submitted that the evidence of Mr Tropoulos tended to give emphasis to those matters which presented him in the role of a “wronged” or “injured” party. In my view there is merit in this submission. There were also numerous instances where Mr Tropoulos’ evidence appeared deliberately contrary, and therefore suggested that he had no satisfactory answer for the questions Counsel sought to put to him. For example, I note the following interchange at pp 125-126 of the transcript:
MR MORRIS: When this pleading was delivered, did you believe the allegation to be true, that the firm would have provided other employees with a graduated return to work program?---Yes.
And what was the basis for that belief?---Belief.
Yes. What was the basis for it?---Belief.
Just imagination?---No, belief.
Belief must be based on reason?---Well, it’s - - -
What are your reasons?---Well, on reason, but not imagination.
Okay. Well, what are the reasons for thinking that they would have done it for someone else but not for you?---Well, I know they were very scared of female employees. They did everything .....
So you’re saying now that there were some female employees who were allowed to return to work on half days?---No, I’m saying that they would – that they would have made adjustments and assisted.
Are you serious? Are you seriously suggesting that this was a get Steve Tropoulos - - -?---No, I’m not saying that.
- - exercise?---I’m not saying that. I’m saying that they – I – they – I think they would have helped other people return to work. I think the point here - - -
But don’t you agree that the firm went out of their way to assist you both on the first return to work, although that only lasted for one day, and the second return to work, and you were extremely grateful for everything they did to try and help you?---I was grateful. I said that because I was scared of losing my job. I was very ashamed of being depressed, sir.
Do you accept that they went out of their way to help you?---They helped.
They did everything that could reasonably be asked of them - - -?---No.
- - - to help?--- Not everything, no.
You’ve got no basis at all, have you? No basis whatsoever for thinking that they would have treated another employee better than you?---I think they would have treated another employee better.
Which one?---All of them.
All of them? All apart from you? So it was a get Steve Tropoulos exercise, was it?---Possibly.
Sorry?---Possibly.
Possibly. And what do you think the motive would have been for that?---I don’t know. A letter on 24 February demoting me.
Yes. No, we will come to that. We will come to that. Just focusing on this for a moment. What makes you think that you were singled out as the one that would be treated badly?---Because I was depressed.
I see. Do you think they’ve got an aversion about depression?---Yes, I do.
You do?---We’re here.
No, we’re here because you’ve sued?---Are we?
Yes. Do you have some trouble understanding that? That you’re the one that commenced these proceedings?---I know I’m the one that commenced these proceedings.
Yes. All right. Now going back to what you allege to be my client’s discrimination, can you offer to the court any rational explanation for thinking that the treatment you received was worse than the treatment that any other employee of Journey would have received in this - - -?---No, I can’t.
You can’t. So it is just imagination, is it?---I didn’t say that.
Well, if you can’t offer any rational explanation for it, where does it come from? What does that gesture mean?---What gesture?
The gesture you made when I asked you that question. Do you have an answer for it?---I don’t have an answer. I’m just listening.
Well, your function here is to answer my questions. Not just to listen to them?---But you weren’t asking a question.
Yes, I did. If you don’t have a rational basis for that belief, why isn’t it just imagination?---I guess it could be imagination.
Well, you agree you cannot give any rational basis for thinking that you were singled out for your treatment?---I have my reasons.
You have your reasons. Okay. Well, what are they?---I’ve told you. I think that they would have assisted other people.
No, you’ve said that they would have assisted every other member of staff except from you?---It’s a gut feeling.
A gut feeling. And what’s that based on?---Imagination.
68 And later at pp 133-134 of the transcript:
MR MORRIS: No, no, no, I’m trying to work out what is in your mind and, again, do you seriously suggest that you were singled out for adverse treatment?---Yes, whether intentionally or not.
And what makes you think that, that you were singled out?---Just a feeling I have.
Look, I’ve been thinking over lunch about this feeling that you’ve referred to before lunch and now referring to again, is there something you’re not telling the court that led you to feel that you are the victim of this discrimination?---No.
Did you have some reason to think that Mr Galvin or anyone else particularly disliked you?---Not particularly.
Did you have bad relations with him or anyone else at the firm?---No, I thought I had better relations with him actually.
You’re not suggesting that you were singled out for other reasons – that they didn’t like your ethnicity or your sexual orientation or anything else about you?---I don’t know.
No. You must know what’s in your mind. Is this thought that you’ve told us about, whether we call it an imagination or a belief or anything else - - -?---When I say I don’t know, I’m saying it’s possible.
No. You referred to a belief?---Right.
Yes.
HER HONOUR: A gut feeling, I thought.
MR MORRIS: A gut feeling. Thank you, your Honour. Yes. A gut feeling. What was the cause of this gut feeling?---The fact that I was ill and he just – I’ve seen how he has treated other staff members in the past when – when they got ill or they can’t keep up or something is going wrong. There’s just this horrible way of managing them out, you know. And it just made me feel uneasy. But that’s all. I mean, it doesn’t matter. That’s not the basis of the case, so it’s just - - -
No, no?---That’s the basis of my feeling. That’s all.
69 I consider that Mr Tropoulos’ evidence was given almost entirely through the prism of his hurt feelings at what he perceived to be a lack of caring by Journey Lawyers about him and his condition. I note for example his view that he was “very sick” and “they didn’t care at all” (transcript p 188 ln 17), that “other staff members would at least have had a nice conversation when they got back from being ill and would have told them what has been happening in the firm and what has been happening with cases” (transcript p 136 lln 40-42), his emphasis on his “gut feeling” that the firm was discriminating against him, and what he perceived as the failure of the firm to help him. I note the following exchange at p 206 lln 4-12 of the transcript:
No, but as a graduated return to work program, it failed?---So what are you suggesting? That I should have resigned? Is this what you’re doing?
No, just answer my questions. Just answer my questions?---That people don’t get sick and can’t go back to work? Was that what I was supposed to do? Lock me up in Bedlam? Is this what we’re supposed to do? You don’t help people? Is cancer a better illness or a car accident or a footy – a footy injury? Would that have been better? Would it have been all okay and I would have had support to return to work then? Yes, your Honour, I need a break if possible, unless Mr Morris is finishing up.
70 It follows that while I considered Mr Tropoulos was an honest witness, I have doubts about the reliability of aspects of his evidence.
71 Dr Geffen gave evidence in the form of affidavits dated 15 May 2017 and 14 February 2018. Dr Geffen also gave evidence under cross-examination at the hearing. Materially, Dr Geffen deposed as to the following in relation to his medical treatment of Mr Tropoulos:
Mr Tropoulos was first referred to Dr Geffen on 13 March 2006 and their first consultation was on 17 March 2006.
After their first consultation, Dr Geffen saw Mr Tropoulos approximately monthly until August 2007. Dr Geffen next saw Mr Tropoulos in July 2010 for a single review appointment.
Mr Tropoulos returned to regular treatment with Dr Geffen in November 2014 and Dr Geffen has seen Mr Tropoulos regularly since then, at intervals ranging from a few days to monthly, including periods of inpatient care.
72 Dr Geffen gave evidence of his diagnosis of Mr Tropoulos, namely major depressive disorder, followed by Bipolar Disorder Type II and adult ADHD, and his prescribed treatments.
73 In relation to the period of Mr Tropoulos’ severe depression in late 2015, Dr Geffen stated:
29. From August 2015, higher dose antidepressant therapy with attempts at augmentation using mood stabilizers had limited yield. Attempts to treat his depression while sustaining work at a lower level of hours and duties across From on [sic] October and November proved unsuccessful. Ultimately hospitalization for agitated depression ensued.
30. Initially this was only partially relieved by olanzapine augmentation and combination antidepressants and an acute course of ECT was undertaken. Mr Tropoulos requested this as he was alarmed at the severity of his depression and hoped for a rapid and full restoration in function. From the outset, he was concerned about the impact on his career of an extended period of disability. ECT was successful with discharge in early January 2016 having commenced lithium to stabilize his mood and limit the risk of relapse.
31. Initially Mr Tropoulos improved during acute inpatient care. Many patients have supportive carers or family on discharge, and as a single man living on how own this task was harder for him than some. There was some anxiety on discharge but he managed this well, returning to independent living. ECT treatments were tapered after discharge (from weekly to fortnightly before cessation). My notes from his post hospital clinic attendances on January 19th 2016 and January 29th 2016 both contain notes of a normal mood and a good level of function. Like many patients, Mr Tropoulos felt anxious about socializing but was anticipating a return to work. On 19th Jan, my notes record he “wants to get out and live but feels shame that is not currently working”, On the 29th January, he had what was to be his final ECT treatment in his words “to be sure”. He had lost some confidence across the course of his recent period of illness but was, to all intents and purposes, well. My notes on that day stated “euthymic” meaning a healthy/normal mood.
74 In relation to the breakdown of Mr Tropoulos’ working relationship with Journey Lawyers, Dr Geffen gave the following evidence in his affidavit of 15 May 2017:
32. Since this time, Mr Tropoulos has struggled with a severe relapse in the face of perceived lack of support from his employer for his return to work in his former position (I believe this is covered in more detail in this and other documents). He struggled to resolve this issue but as the relationship deteriorated, so too did his mood and another period of several weeks (late February to late April 2016) in hospital and treatment with ECT was required before he could once again live independently. On this occasion, even though able to leave hospital, he struggled with residual depressive symptoms and needed ongoing day therapy and intensive support as the prospect of a return to work seemed distant. He could not resolve the impasse with his employer but as a contracted employee could not work elsewhere on a temporary basis.
33. Mr Tropoulos’ residual depressive symptoms in part stemmed from having lost his work role and status and that this process also robbed him of much of his social life with former workmates. However, he was well enough to live independently and again attempt a return to work. We have hoped for a graduated return to work gradually increasing hours (from 0.5 FTE upwards) and duties (simply limiting court attendance in the early phase). Our goal was to build his tolerance for full time work again…
75 In his affidavit of 14 February 2018 Dr Geffen deposed, materially:
8. … I refer to the period of March 2016 in my earlier affidavit affirmed 15 May 2017 at paragraphs 57 and 58 and there was simply no possibility given what I have outlined in those paragraphs that Mr Tropoulos was able to return to work on 4 March 2016. The only other way I can interpret this would be that he was referring to the anticipated fitness for a return to work planned for March 4th 2016. This was planned after my review in January 2016 suggested marked improvement (paragraph 49 and 50 of my earlier affidavit 15 May 201 7). However this plan preceded further correspondence from Mr Galvin that presaged a worsening in Mr Tropoulos' depression. In either case by March 2016 Mr Tropoulos was clearly not fit to return to work.
76 Journey Lawyers accepted Dr Geffen as a witness of truth but nonetheless made the following submissions in relation to his evidence:
Psychiatry is not an exact science.
Dr Geffen has expressed optimism with respect to Mr Tropoulos’ prognosis, which has in the present circumstances been misplaced.
Dr Geffen’s conduct in providing the email dated 9 February 2017, in Dr Geffen’s own opinion, was a major contributing factor to the decline in Mr Tropoulos’ condition.
It would therefore be open to the Court to conclude that the evidence of Dr Geffen, although given honestly, was coloured by Dr Geffen’s own sense of failure in misjudging the capacity of Mr Tropoulos to return to work on two occasions and in his handling of the email dated 9 February 2016.
Dr Geffen may have a desire, even a subconscious one, to place the most favourable complexion on his own evidence and to act as an advocate for Mr Tropoulos.
77 I accept Dr Geffen as a witness of truth, and note the apparent difficulties associated with assessing Mr Tropoulos’ condition and accurately predicting the extent of Mr Tropoulos’ recovery such that he would be able to return to work. However, Dr Geffen appeared to misjudge the capacity of Mr Tropoulos to return to work on multiple occasions. Dr Geffen’s evidence in respect of Mr Tropoulos’ ability to return to work at any time must be viewed through the prism of Mr Tropoulos’ unsuccessful attempts to do so.
78 I note that Dr Geffen had been the consulting psychiatrist of Mr Tropoulos for many years, and appeared to have a good relationship with him. While I consider Dr Geffen’s evidence was properly given from the perspective of an expert medical practitioner, I also consider that his evidence was coloured by his optimism concerning Mr Tropoulos’ recovery.
79 I further consider that Dr Geffen was placed in a difficult position in respect of Mr Galvin’s email of 9 February 2016, although to some extent this followed from his earlier direct communication with Journey Lawyers which I consider led Mr Galvin to believe that it was appropriate to communicate directly on a confidential basis with Dr Geffen, rather than Journey Lawyers communicating only with Mr Tropoulos in respect of issues relating to Mr Tropoulos’ health.
80 Mr Galvin is the sole director of Journey Lawyers. He gave written evidence in two affidavits dated 30 May 2017 and 10 October 2017. Mr Galvin was also cross-examined by Counsel for Mr Tropoulos during the hearing.
81 Mr Galvin confirmed the following in relation to the dates of Mr Tropoulos’ absences from work:
First absence: 11 August 2015 to 21 September 2015 (inclusive).
Second absence: 23 September 2015 to 16 October 2015.
Third absence: 5 December 2015 to present (inclusive).
82 In respect of the single day for which Mr Tropoulos returned on 22 September 2015, Mr Galvin deposed that:
Mr Tropoulos performed 0.7 hours of legal work.
Mr Tropoulos did not attend court.
Mr Tropoulos attended to two client files and his tasks were sending an email and perusing a letter from the Mater Hospital.
83 In relation to Mr Tropoulos’ second return to work, Mr Galvin deposed that he had regard to a letter written by Dr Geffen on 13 October 2015, but so far as he was concerned, that letter did not make any recommendations. On the strength of Dr Geffen’s advice that Mr Tropoulos was fit to resume work, and with the agreement from Mr Tropoulos, Mr Galvin felt that he had done everything he could reasonably do to set up a helpful work environment for Mr Tropoulos and the clients. Mr Galvin deposed that he directed Mr Tropoulos to instruct Mrs Galvin in court on Mr Tropoulos’ return to work as an easy day for Mr Tropoulos, in circumstances where Mrs Galvin had a full understanding of the matter and simply needed Mr Tropoulos to take notes during the trial.
84 Mr Galvin deposed that he wrote his letter of 9 December 2015 to Dr Geffen at a time when Mr Tropoulos had not been at the office for over a month, and with the suggestion that Mr Tropoulos be away for a further 6-12 weeks.
85 In respect of this letter Mr Galvin deposed, inter alia:
52. I had sent the letter to Dr Geffen on 9 December and copied it to the Applicant, because Dr Geffen had said to communicate with the Applicant and indeed because of the letter that I had received from the Applicant I felt I was entitled to give feedback to his Dr about how work was impacting on him.
53. In that letter of 9 December 2015 I was setting out for Dr Geffen how the Applicant continued to demonstrate a reluctance to engage with clients and potential clients and that was a key part of his role. The reason for telling those things to Dr Geffen was that I wanted the Applicant to be well when he came back to work. At this stage he had been absent from the office with no time for me to prepare for his absence for 4 months with having had 2 aborted attempts to return to work.
86 Mr Galvin deposed that he negotiated Mr Tropoulos’ return to work in good faith, putting the interests of his clients at the forefront of his decisions. He also gave evidence that at no time during the negotiations was he aware that Mr Tropoulos was in hospital.
87 Mr Galvin further deposed that, in the past, salaries of lawyers had been reduced in accordance with their contracts. Annexed to Mr Galvin’s affidavit of 30 May 2017 was a copy of an earlier letter from Journey Lawyers to Mr Tropoulos, dated 28 February 2014, notifying him that, in view of a severe downturn in income coming into the firm, a review of lawyers’ salaries had been conducted, and his salary was reduced to reflect his reduced productivity.
88 Mr Galvin deposed that Mr Tropoulos’ first return to work was for one day, on 21 September 2015. At that point Mr Galvin stated he had no information as to the extent of Mr Tropoulos’ condition other than the medical certificate from Dr Geffen dated 18 September 2015.
89 Mr Galvin said that Mr Tropoulos’ second return to work followed correspondence between them which referred to Mr Tropoulos working three days per week. However, in reality Mr Galvin did not insist on strict compliance with that plan. Rather, Mr Galvin deposed that the second return to work was characterised by Mr Tropoulos attending and leaving the office in what was generally an ad hoc arrangement, and in practice, Mr Tropoulos regularly worked fewer than three days per week during this period. Mr Galvin said that, generally, he took no issue with this, and that the respondent adjusted Mr Tropoulos’ pay accordingly. It was clear to Mr Galvin that Mr Tropoulos was not well, and therefore Mr Galvin allowed Mr Tropoulos to come and go, hoping that Mr Tropoulos could eventually return to full working capacity.
90 Mr Galvin deposed to the following in respect of the financial impact of Mr Tropoulos’ diminished work capacity:
In summary – during the months of September 2015 to December 2015, Mr Tropoulos billed a total of $12,840 and collected $11,607.07.
During the same period of the previous year (2014), Mr Tropoulos billed a total of $148,052 and collected $139,883.18.
Accordingly, Mr Galvin stated that Mr Tropoulos was working at one tenth of his previous working capacity during this period, compared with the same period one year earlier.
91 In his affidavit of 10 October 2017 Mr Galvin deposed:
29. At the same time, Journey was still covering the Applicant’s wages and the other fixed overheads relating to providing the support necessary to a full time lawyer such as rent, support staff and other outlays. In the financial year 2015/2016, the expenses of Journey including wages was $1,894,684. The number of lawyers can vary but at the time there were nominally nine lawyers. Based on our overheads, each lawyer costs on average $210,520 per annum. After adjusting for their salaries, the average cost of support for lawyers each year is between $80,000 and $100,000 per annum. Therefore, over a four month period the cost of support for lawyers is between $25,000 and $35,000. This is in addition to their wages.
92 Mr Galvin stated that he asked for medical certificates prior to Mr Tropoulos’ returns in September 2015 and October 2015 because it was apparent that Mr Tropoulos was not well. Mr Galvin also insisted on being given a medical certificate prior to Mr Tropoulos being able to return after December 2015 because of professional and workplace safety concerns.
93 Mr Galvin deposed that, because of his professional obligations and his obligations to clients, he could not hold Mr Tropoulos out to be a Senior Associate when it became clear that Mr Tropoulos could not fulfil that role.
94 Mr Galvin stated that he had an obligation to his staff to ensure that Journey Lawyers remained viable.
95 Further, because of financial and other concerns about Mr Tropoulos’ inability to earn fees and perform as a lawyer specialising in family law, Mr Galvin decided to advise Mr Tropoulos as to the arrangements that Journey Lawyers was proposing when Mr Tropoulos eventually returned to work following the absence from December 2015. However, Mr Galvin was concerned that this correspondence could have a detrimental effect on Mr Tropoulos and, for that reason, Mr Galvin wrote only to Dr Geffen on 9 February 2016, outlining the proposal and seeking advice from Dr Geffen.
96 Mr Galvin deposed the following in relation to the general practices of the respondent:
Journey Lawyers is a small firm of lawyers without many formalities, and instead operated as a team to provide good legal services to its clients.
Journey Lawyers has an open management style, and it was not the practice of Mr Galvin to provide formal briefings for anyone who has been away from the office.
The respondent has three offices and therefore transmits most information by email. The firm’s employees know what is going on at the office by accessing their emails.
Mr Galvin had never given a formal briefing of administrative staff changes if someone had been away. Usually, if something changed, Mr Galvin sent emails when necessary to communicate with affected staff.
Clients of any lawyer who was absent for a long period would always be re-allocated to other lawyers. Often when the original lawyer returned to work, their previous clients stayed with their new lawyer by choice, but some returned to their previous lawyer. The client was given this choice
Mr Galvin had never engaged a lawyer to work a three-day week because it was an impractical arrangement for Journey Lawyers.
When a lawyer was starting out with Journey Lawyers or there was any concern that the lawyer might not have the capacity to conduct interviews in a particular matter or with a particular client, it was Mr Galvin’s practice to have another lawyer sit in on the interview (including potentially Mr Galvin himself). Mr Galvin also did this from time to time to check that lawyers were following procedure, advising about the law correctly and were converting “initial consult clients” into full fee-paying clients.
97 Finally, Mr Galvin stated that it was in the best interests of Journey Lawyers that Mr Tropoulos returned to work as a full, productive member as Mr Tropoulos was previously one of the best fee-earners for the firm.
98 Mr Tropoulos submitted that aspects of Mr Galvin’s evidence was not credible, in particular:
His explanation that Mr Tropoulos had quite properly been asked to instruct Counsel at a trial on his first day of his second return to work program was not credible.
The objections advanced by Mr Galvin in his second affidavit affirmed 10 October 2017 as to why he could not allow the Applicant to work half-days were without foundation in light of the approach he authorised for a team of three lawyers to work interchangeably across a seven-day trial in the Family Court.
Mr Galvin mainly worked out of the Strathpine office of Journey Lawyers. His attendance at the Spring Hill office was ‘intermittent’ with the consequence that Mr Galvin’s observation that Mr Tropoulos was unable to perform his work confidently was more likely to be conjectural than based on any day to day observations of Mr Tropoulos from 21 September up to and including 4 December 2015.
There were errors in Mr Galvin’s evidence concerning the actual dates of Mr Tropoulos’ first and second return to work, his periods of hospitalisation and his billings.
His assertions about Mr Tropoulos’ work attendances and billable hours were made on the basis of the PCLaw time management system which Mr Galvin conceded in cross-examination was not completely accurate.
99 I am not persuaded that Mr Galvin was unfamiliar with the work performed by Mr Tropoulos during the periods Mr Tropoulos returned to work. Rather, the firm was, in substance, Mr Galvin’s business – I am satisfied that Mr Galvin maintained a position of constant interest in and monitoring of, the performance of employees, in particular their billings. Further, I am satisfied that Mr Galvin was particularly interested in Mr Tropoulos because of Mr Tropoulos’ senior role in the firm, the fact that Journey Lawyers clearly valued Mr Tropoulos as an employee, the circumstances of Mr Tropoulos’ absence, and the difficulties attendant on Mr Tropoulos’ return to work. While there may have been flaws in Mr Galvin’s evidence referable to the PCLaw system, I consider that those flaws were most likely superficial, and that on balance his evidence in that respect was reliable. I am not persuaded that the errors in Mr Galvin’s evidence concerning dates relating to Mr Tropoulos’ first and second return to work, his periods of hospitalisation and his billings were other than immaterial, or were such as to reduce the probity of Mr Galvin’s evidence.
100 Further, I consider that Mr Galvin gave his evidence in a forthright manner, was not evasive, and made proper concessions where appropriate.
101 In my view, Mr Galvin was a very credible witness and overall I accept his evidence.
102 The respondent tendered an expert report by Ms Fiona Manderson dated 5 October 2017, annexed to her affidavit of 10 October 2017, in support of its defence relating, in particular, to the nature of family law practice and its relevance to the actions of Journey Lawyers. In particular, Journey Lawyers sought to rely on Ms Manderson’s evidence in relation to its contention that the reasonable adjustments alleged by Mr Tropoulos would have resulted in “unjustifiable hardship” to the firm. Ms Manderson was cross-examined by Counsel for Mr Tropoulos in relation to her report.
103 Counsel for Mr Tropoulos objected to the admissibility of Ms Manderson’s evidence both generally, and in respect of specific paragraphs of her report. In particular I note that Ms Manderson’s credibility was not challenged, but the breadth of her experience and expertise was questioned. Further, Counsel criticised Ms Manderson’s evidence as failing to address the specific criteria set out in s 11 of the DD Act, and in respect of her lack of specific knowledge of the practice of Journey Lawyers. At the trial however, in the interests of efficiency, the parties agreed to a course whereby the Court heard Ms Manderson’s evidence and deferred a ruling as to its admissibility. It is convenient to do so now.
104 Section 79(1) of the Evidence Act 1995 (Cth) provides:
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
105 As the High Court pointed out in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [32]:
To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person's training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.
106 The term “specialised knowledge” was explained in Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 at [23]:
…“Specialised knowledge” is to be distinguished from matters of “common knowledge”. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines “knowledge” as “acquaintance with facts, truths, or principles, as from study or investigation” (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J’s formulation in Daubert v Merrell Dow Pharmaceuticals Inc: “the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”
107 As a general proposition, a witness advanced as an “expert” (see Myers v The Queen [2016] AC 314 (PC) at [58]):
…must have made a sufficient study, whether by formal training or through practical experience, to assemble what can properly be regarded as a balanced body of specialised knowledge which would not be available to the tribunal of fact … [C]are must be taken that simple, and not necessarily balanced, anecdotal experience is not permitted to assume the robe of expertise...
108 Ms Manderson’s qualifications and experience can be summarised as follows:
Ms Manderson holds the following degrees and qualifications: Master of Laws (Queensland University of Technology); Graduate Diploma of Legal Practice (Queensland University of Technology); Bachelor of Laws (Second Class Honours, Griffith University); Bachelor of International Business (Griffith University); Vocational Graduate Diploma of Family Dispute Resolution.
Ms Manderson is admitted as a solicitor of the Supreme Court of Queensland and the High Court of Australia.
Ms Manderson is presently an employed solicitor (Special Counsel from 12 September 2016) at Corney & Lind Lawyers Pty Ltd, and formerly Senior Associate (for the period 2 April 2013 until 12 September 2016) and Family Law Team Leader for a period up to approximately September 2016 at Corney & Lind Lawyers Pty Ltd.
Ms Manderson has been employed for both small and medium sized legal practices in Queensland, as well as an “in house” lawyer at Legal Aid Queensland.
For the first 12 years of her legal practice, Ms Manderson predominately practised in the area of family law.
Ms Manderson commenced at Corney & Lind Lawyers in early April 2013 and was employed primarily to build a family law practice.
109 Although Counsel for Mr Tropoulos accepted that Ms Manderson was a family law practitioner with some experience, he submitted that her experience was unremarkable in the sense used by Levine J in O’Brien v Gillespie (1997) 41 NSWLR 549 at 551. In that case his Honour observed, in relation to opinion evidence of a solicitor tendered as an expert:
The deponent also sets out his professional career which, without intending in any way any disrespect, is unremarkable, he having been in practice since 18 March 1996 following articles of clerkship, the completion of the Solicitors Admission Board course, and in firms in the Sydney Metropolitan area, Orange and Penrith; he sets out what I will describe as the usual experience in litigation and conveyancing such a solicitor would gain, like the case of thousands of others.
110 His Honour continued in that case:
It appears to me that Mr Penhall has been asked a series of questions in his capacity merely as one solicitor leading to the expressions of opinion and comment upon the conduct of another solicitor. There is no material in Mr Penhall's affidavit in terms of his training, study or experience, in my view, to elevate him to be a person with the requisite specialised knowledge based upon those qualifications within the meaning of s 79 nor was any such evidence sought to be adduced. The fact that the proposed evidence amounts to no more than one solicitor commenting upon the conduct of another on the identified issues in this litigation becomes relevant later, though it can now be stated that that consideration is not irrelevant to all the bases for exclusion upon which I have rested my decision.
111 Ms Manderson’s evidence was also criticised on the basis that she had practised in the Mackay area outside Brisbane for five years, and that her only experience working in Brisbane as a family lawyer in private practice was between April 2013 and late 2016, which is an insufficient basis to qualify her as an expert. Rather, Counsel submitted that Ms Manderson was someone with some experience in aspects of family law practice.
112 Further, Counsel for Mr Tropoulos referred to Ms Manderson’s admission to drawing “heavily from social sciences as a method to understand the dynamics in family law matters and approaches to working with clients”, and, to the extent that this was outside her field of expertise, her report was inadmissible.
113 Ms Manderson received instructions to prepare her report on 29 September 2017 in the following terms:
1. Please set out your professional address, qualification and experience including annexing a copy of the curriculum vitae to your report.
2. Please confirm you have read and complied with the Expert Evidence Practice Notice (GPN-EXPT) for Expert Witnesses in the Federal Court of Australia, setting out the right and obligations of the expert witness.
3. Please set out what material was supplied to you, which you took into account in preparing the report, and any other documents relied upon in the preparation of your report.
4. Please provide your professional opinion as to matters plead in the documents set out above, specifically on the matters raised in Part 3, Part 4, Part 5 and Part 6 of the Amended Defence, most especially:
a. paragraph 19 to 23;
b. paragraph 26 and 27;
c. paragraph 30;
d. paragraphs 39 and 40; and
e. paragraphs 41 to 44.
5. Please offer any relevant comments you may have with respect to the Amended Defence particularly at:
a. paragraph 53(a);
b. paragraph 54(a);
c. paragraphs 55(a), (b) and (c);
d. paragraph 56(b);
e. paragraphs 56(d) to (g);
f. paragraph 56(i);
g. paragraphs 77(c) and (d);
h. paragraphs 77(h) to (j);
i. paragraph 82, especially subparagraphs (e), (g) and (i);
j. paragraph 84(c);
k. paragraphs 87(b) to (d);
l. paragraph 91(e);
m. paragraph 95(d);
n. paragraphs 111(a) to (f);
o. paragraphs 124(a) to (c).
114 The contents of Ms Manderson’s report can be summarised as follows:
In relation to [19] of the amended defence: By necessity, family lawyers become privy to a raft of extremely private information and, as a consequence, family law clients will often develop a close working relationship with their legal practitioner.
In relation to [20] of the amended defence: In Ms Manderson’s experience, family law clients have a greater degree of seeking to be able to access their lawyer (and not another lawyer in the firm) on short notice. Generally speaking, the standard expected by Legal Aid Queensland is that clients must be called back, at the latest, by the next business day. It was the practice of the law firm where Ms Manderson practised that clients’ calls were returned on the same day. Family law clients were generally less tolerant of not receiving calls back promptly than clients in other areas of law.
In relation to [21] of the amended defence: Ms Manderson had experience working less than full-time, in that she worked nine days per fortnight. Ms Manderson expressed the opinion that it would be problematic for a lawyer practising in family law to work a vastly reduced schedule, especially where they were involved in dispute resolution. This is because of the need to be available for court attendances and deadlines, the likelihood of urgent intervention in family law matters, the intensity of preparation for hearings, and the ongoing needs of other clients.
In relation to [23] of the amended defence: Ms Manderson opined that family lawyers needed to be capable of the following: demonstrating their ability to establish and maintain rapport with a client; taking and receiving instructions from a client; providing accurate legal advice and information; planning and executing a strategy to respond to a client’s matters; delivering legal advice in a compassionate and considered manner; maintaining a good professional relationship with the client; and maintaining a good professional relationship with other colleagues and stakeholders, including Police, Department of Communities, DV Services and courts. Family lawyers were required to deal with people when they are at their worst, and family lawyers could not do so over any particular length of time without attending to their own resilience and ensuring that they themselves were as even-tempered and stable as possible.
In relation to [26]-[27] of the amended defence: It would be difficult to maintain a file load of primary family law matters on a part-time basis of any kind, but it would be impossible to do so on less than a three non-consecutive day arrangement unless the solicitor was able and willing to be regularly available for clients and courts on their days off, or their work involved purely the provision of short advices. Ms Manderson agreed that the matters outlines at [26](a) of the amended defence would be “inherent requirements of a family law position”.
In relation to [30] of the amended defence: Ms Manderson stated that there is a general consensus that there has been an oversupply of law graduates. However, Ms Manderson was unaware of the number or percentage of graduates or solicitors seeking part time employment.
In relation to [39] of the amended defence: Ms Manderson opined that in some circumstances a family lawyer could deliver appropriate levels of service despite suffering from a mental health problem, but this was not always the case.
In relation to [41] of the amended defence: Ms Manderson agreed – to a limited extent – that it is unusual to receive “repeat business” from former clients in family law matters to the extent that they involve the dissolution of family break ups. However, Ms Manderson stated that sometimes a lawyer would receive “repeat business” from a family law client because the client would often require assistance with multiple matters including parenting disputes, property settlement, spousal maintenance issues, child support issues and domestic violence matters. In family law practice, Ms Manderson considered that recommendations from previous clients, including on line reviews, were an important source of new work.
In relation to [43] of the amended defence: Ms Manderson agreed that the matters at [43](a)-(c) of the amended defence would likely have an effect on the ability of the practice to attract and retain clients. Ms Manderson did not consider that she was in a position to assist the Court in relation to the outstanding matters in [43] of the amended defence.
In relation to [53] of the amended defence: Ms Manderson opined that it would be possible in some circumstances to allocate a file temporarily to another practitioner, rather than permanently allocating it. The ability to do so, however, would generally only be possible in circumstances where: the absence of a practitioner for an extended period was anticipated and appropriately planned in advance; there was sufficient staffing to be able to cover a temporary allocation; and it was possible for the file manager to be contacted for strategic input during their period of leave. Ms Manderson noted that there was a risk that a client would express that they wished to remain with the solicitor temporarily allocated their file, or that it could be impractical to the transfer the file back to the original file manager.
115 In the witness box Ms Manderson was calm, confident, and clearly experienced in the practice of family law. I found Ms Manderson a very credible witness, and noted that she was prepared to make proper concessions where appropriate.
116 While in my view Ms Manderson could not be described as a senior practitioner in the area of family law, this does not mean that she lacked specialised knowledge in respect of family law practice on a daily basis. She had experience across a range of legal practices including legal aid, both in Brisbane and in regional areas of Queensland, and both full-time and part-time practice. From that experience she was able to comment on the day to day practice of family law, the role of family lawyers, appropriate interactions with family law clients, and in particular working part time in the practice of family law.
117 To the extent that the conduct of daily practice in family law firms is not contended, by either party, to be an exact science, Ms Manderson’s knowledge of that practice is specialised, being in this case knowledge which is outside that of persons who have not by training or experience acquired an understanding of the subject matter. I consider her specialised knowledge of family law practice to be more than unremarkable in the context discussed in O’Brien v Gillespie and I am prepared to accept her evidence as expert opinion pursuant to s 79(1) of the Evidence Act 1995 (Cth). However, because of her lack of seniority and the generality of the topic of family law practice on which she has provided her opinion, I am prepared to give her evidence only limited weight as providing insight into practices relevant to the issues before the Court.
RELEVANT LEGISLATIVE PROVISIONS
118 Section 46PO of the AHRC Act allows a person who is an affected person in relation to the complaint to make an application to the Federal Court or Federal Circuit Court where:
(a) a complaint has been terminated by the President under s 46PE; s 46PF(1)(b) or s 46PH; and
(b) the President has given notice to any person under s 46PH(2) in relation to the termination.
119 Section 46PO(3) of the AHRC Act further provides that an applicant will be confined to allegations which are the same as, or the same in substance as, the unlawful discrimination that was the subject of the terminated complaint, or which arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
120 Section 3 of the DD Act contains an “objects” section as follows:
The objects of the Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that person with disabilities have the same fundamental rights as the rest of the community.
121 Section 5 of the DD Act defines “direct disability discrimination” for the purposes of that Act:
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
122 Mr Tropoulos relies further on s 15(2) which contains the following prohibition against disability discrimination in employment:
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
123 In his pleaded case Mr Tropoulos relies in particular on subs (a) and (b) of s 15(2).
124 “Disability” is defined in s 4 of the DD Act as follows:
Disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exits; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
125 “Reasonable adjustment” within s 5(2) is defined for the purposes of the DD Act by s 4 as:
… an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
126 “Unjustifiable hardship” is in turn defined in s 11 of the DD Act:
(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a) the nature of the benefit or detriment likely to accrue to, or be suffered by, any person concerned;
(b) the effect of the disability on any person concerned;
(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
(2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
127 Further s 21A of the DD Act provides:
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator – the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisations or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
…
128 In summary, Mr Tropoulos submitted as follows:
At various times, Journey Lawyers did not make or propose to make reasonable adjustments for him, which had the effect that Mr Tropoulos was, because of his disability, treated less favourably than a person without his disability would be treated in circumstances that were not materially different
In respect of Mr Tropoulos’ return to work on 21 September 2015:
(a) Although Journey Lawyers proposed an adjustment to the working hours set out in cl 4.1 of Mr Tropoulos’ contract of employment, this was not the required adjustment. This is because what had been made plain by Dr Geffen was that the Applicant should have reduced hours. Had a discussion taken place with Dr Geffen no doubt he would have informed Journey Lawyers that what was required for Mr Tropoulos on his return to work on 21 September 2015 was as Dr Geffen stated in his affidavit at paragraph [41], namely half-time attendance 4-5 days per week.
(b) In considering the respondent’s failure to make the adjustment to half-time attendance 4-5 days per week, the question is whether Journey Lawyers treated Mr Tropoulos less favourably than a person without his disability would be treated in circumstances that were not materially different. The appropriate hypothetical comparator in this matter is a fellow worker who suffers an injury at work for which they could receive compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act). Section 228 of the WCR Act requires that the employer of a worker who has sustained an injury must take all reasonable steps to assist or provide the worker with rehabilitation for the period for which the worker is entitled to compensation. Section 116 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (WCR Regulation) refers in turn to guidelines made by the Regulator under the WCR Act, which prescribe the standard for the rehabilitation that an employer must provide.
(c) The treatment by Journey Lawyers of Mr Tropoulos was because of his disability, hence there was a causal connection as required by s 5(2)(b) of the DD Act.
(d) By s 11(2) of the DD Act, the burden of proving that something would impose an unjustifiable hardship lies on the person claiming unjustifiable hardship at the time that the reasonable adjustment is required to be made. There was no suggestion in the amended defence or Mr Galvin’s evidence that the tasks worked on 21 September 2015 could not have been worked during a half day.
(e) In relation to the inherent requirements defence of Journey Lawyers raised under s 21A of the DD Act, there was no scope for that defence to operate when looking at the issue of Mr Tropoulos’ return to work on 21 September 2015.
In respect of Mr Galvin’s email of 2 October 2015:
(a) It proposed not to make reasonable adjustments for Mr Tropoulos and did not address his needs.
(b) In the email, Journey Lawyers was looking at the circumstances of Mr Tropoulos from the point of view of the requirements of the practice including the clients rather than what would assist in his rehabilitation through the carrying out of suitable duties by him.
(c) The email ignored Mr Tropoulos’ reference to a recommendation of Dr Geffen that Mr Tropoulos work five half-days per week.
(d) The decision that Mr Tropoulos work three alternate days per week effectively put the interests of the business of Journey Lawyers and its clients before those of Mr Tropoulos.
(e) There was no evidence before the Court upon which a defence of unjustifiable hardship could be made out in respect of this email, taking into account the needs of Mr Tropoulos and what would have happened if he had suffered a workplace injury and was returning to work under a suitable duties plan.
In respect of Mr Tropoulos’ return to work on 21 October 2015:
(a) Mr Tropoulos was not given reasonable adjustments when returning to work, in that reasonable adjustments would have taken into account Dr Geffen’s advice.
(b) Mr Tropoulos was treated less favourably than an employee who had been injured at work and for whom Journey Lawyers owed a duty pursuant to s 228 of the WCR Act. A suitable duties plan for such a hypothetical employee would have taken into account the advice of Dr Geffen, would have ensured that Mr Tropoulos was not working full hours for three days a week, and would have work made available to him which suited his stage of recovery.
(c) The adjustments with respect to Mr Tropoulos made by Journey Lawyers were actuated by the disability suffered by Mr Tropoulos at this time. However, they were not reasonable adjustments in accordance with the DD Act because they did not accord with the advice given by Dr Geffen through Mr Tropoulos to Journey Lawyers that he should only work a few hours five days per week.
(d) It is unclear whether Journey Lawyers was relying on the defence of unjustifiable hardship in relation to this issue. Journey Lawyers had to take responsibility for the failure to take advantage of the program which was suggested, namely a few hours a day five days per week.
In respect of the 9 February 2016 email from Journey Lawyers to Dr Geffen:
(a) By proposing a failure to continue Mr Tropoulos in the Senior Associate role and setting a return date not earlier than 9 May 2016, Journey Lawyers was proposing not to make appropriate or proper modifications or alterations that accorded with his situation where he had been absent from the workplace for a considerable period of time.
(b) The appropriate hypothetical comparator in this respect is not an employee injured at work – rather it is someone who has been absent from the workplace of Journey Lawyers for a similar length of time to that of Mr Tropoulos. Such a comparator would include an employee who has been absent on parental leave. By virtue of s 70 of the Fair Work Act 2009 (Cth) an employee is entitled to up to 12 months of unpaid parental leave and in such circumstances it is conceivable that such an employee would be away from the workplace of Journey Lawyers “for so long, he will not be able to fill the role of ‘senior associate’ that he held previously.”
In respect of Mr Galvin’s email of 24 February 2016:
(a) The position is similar to that in relation to the email of 9 February 2016.
(b) Additionally, in relation to the reallocation of Mr Tropoulos’ office, while it is not suggested that during the time that he was absent Journey Lawyers should have been precluded from allowing it to be used by another lawyer, upon his return he should have been told that he could use this office. By having Mr Tropoulos occupy another office other than the one he was used to, perhaps even an unairconditioned one, was to demean him in his status which altered his position to his prejudice.
In respect of Journey Lawyers’ letter of 18 March 2016:
(a) The reason for the rejection by Journey Lawyers of mediation with Mr Tropoulos was that Journey Lawyers wanted a certificate setting out that he was fit to return to work and carry out his duties in full in accordance with his contract of employment. That stipulation could only be because Mr Tropoulos was suffering from a depressive disorder.
(b) A person who was not suffering from Mr Tropoulos’ disorder would not have had such a stipulation imposed upon him or her because there would be no need for such a certificate.
(c) The failure to waive such a certificate in the circumstances was a failure by Journey Lawyers to make reasonable adjustments for Mr Tropoulos.
In respect of Mr Tropoulos’ claim of victimisation:
(a) The offence of victimisation is created by s 42 of the DD Act.
(b) There is controversy as to whether or not civil proceedings for an offence such as victimisation can be instituted.
(c) Given the definition of “unlawful discrimination” in the AHRC Act it would be a strange result if the Commonwealth Parliament allowed a complaint to be made to the President of the Commission but did not allow the matter to proceed further despite the clear wording of s 46PO(1) of that Act.
There are many reasons why the Court should be concerned about the accuracy of Mr Galvin’s evidence.
In respect of the claim by Journey Lawyers of unjustifiable hardship: there was no financial evidence before the Court which would enable the Court to confidently establish that Mr Tropoulos was a cost burden Journey Lawyers was commercially unable to bear without detriment to the enterprise, and any argument based around that contention must fail.
129 In submissions Journey Lawyers contended, materially:
Mr Tropoulos bears the onus of proving his case under the DD Act, and has not proven, and offered no evidence to prove, the essential elements of his case.
The evidence adduced by Mr Tropoulos did not identify a single instance of another employee who was “treated [more] favourably” in “circumstances that are not materially different”; nor does the evidence posit a single instance of how, in “circumstances that are not materially different”, another employee may conceivably have been “treated [more] favourably”. The most that Mr Tropoulos could suggest was a “belief”, which he conceded was no more than a “gut feeling”, to support these elements of his case.
No positive case – whether actual or hypothetical – was put to Mr Galvin of Journey Lawyers’ treatment of “a person without the disability”, to support a contention that Mr Tropoulos was, “in circumstances that are not materially different”, treated “less favourably”.
There is no evidence that Journey Lawyers’ relevant conduct was committed “because of” – that is, due to, or motivated or actuated by – Mr Tropoulos’ disability.
Not a single specific measure, satisfying the definition of “reasonable adjustments” in the DD Act, was demonstrated to be available to Journey Lawyers.
Mr Tropoulos offered no evidence – either through himself or Dr Geffen – that he would be able “to carry out the inherent requirements of the particular work”, even if Journey Lawyers had “made reasonable adjustments for” his benefit.
During cross-examination of Mr Galvin and Ms Manderson, Counsel for Mr Tropoulos never put anything to either witness by way of a positive case with respect to any of the issues in this proceeding. Counsel’s failure to put a positive case has well-known consequences in accordance with the rule in Browne v Dunn (1893) 6 R. 67.
Further, critical elements of the evidence of Mr Galvin and Ms Manderson was not challenged.
Journey Lawyers did not discriminate against Mr Tropoulos, rather Journey Lawyers, through Mr Galvin, did everything which a responsible and caring employer could reasonably be expected to do – and, indeed, much more besides – for the welfare of a disabled employee.
There is no dispute that Mr Tropoulos was employed by Journey Lawyers to work full-time as a Family Lawyer during ordinary office hours, for the purpose of generating revenue for his employer in the capacity of a Senior Associate. He was unable to do so at the time of either the first return to work or his second return to work. On the evidence of Dr Geffen, he would not have been able to do so on a third return to work, at the very least, for some weeks. Section 21A of the DD Act provides an absolute impediment to actions like the present one.
Journey Lawyers’ amended defence pleads a catalogue of the reasons why the proposals to accommodate Mr Tropoulos would impose an “unjustifiable hardship” on Journey Lawyers. They fall broadly into two categories, namely Journey Lawyers’ ongoing capacity to discharge its professional duties and a substantial detrimental commercial impact on Journey’s business.
Mr Tropoulos’ claim of victimisation does not sound in damages. Further, Mr Galvin’s evidence as to the reason he sought to report his concerns to the Queensland Law Society is plausible and should be accepted.
130 In accordance with the legislation and relevant principles from decided cases, Mr Tropoulos must establish the following in order to be establish direct discrimination in the context of the particular circumstances of this case as pleaded by the parties:
(1) He suffered from a disability within the meaning of the DD Act, and
(2) Journey Lawyers failed to make the reasonable adjustments with the result that Mr Tropoulos was, because of the disability, treated less favourably by Journey Lawyers than a person without his disability would be treated in circumstances that were not materially different.
131 If Mr Tropoulos substantiates these elements, it is appropriate to determine whether that discrimination has been, inter alia, in the terms or conditions of his employment or by denying Mr Tropoulos access, or limiting his access, to any other benefits associated with employment, within the meaning of s 15 of the DD Act.
132 Journey Lawyers further raised a defence under s 21A of the DD Act that Mr Tropoulos was unable to carry out the inherent requirements of the particular work even if Journey Lawyers made the proposed reasonable adjustments for him. I will consider this issue after determining whether Mr Tropoulos has otherwise substantiated his case.
Did Mr Tropoulos suffer from a “disability” within the meaning of the DD Act?
133 The definition of “disability” in s 4(1) of the DD Act includes the following:
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
134 Mr Tropoulos pleads at [10] of his amended statement of claim that at all material times the disability he suffered affects and has affected his thought processes, emotions and judgment and has resulted in disturbed behaviour on his part. The evidence of Dr Geffen was that his initial diagnosis of Mr Tropoulos was that he suffered from a major depressive disorder (non-melancholic), but that his current diagnosis is that Mr Tropoulos suffers from Bipolar Disorder type II. Dr Geffen also deposed that:
Bipolar Disorder type II is essentially depressive disorder as it is a type of bipolar disorder in which the primary clinical issue is a persistent depression (typically periods of weeks and months) often accompanied by anxiety.
…
In Bipolar disorder type II the elevated periods are of “hypomania” or “small mania” in that they are briefer (typically several days) and less conspicuous (no psychosis or need for hospitalization). These elevated or up periods may even be so called “functional hypomania” where a person experiences short periods of heightened energy, activity and confidence that can be very productive, but tend to be associated with irritability and insomnia. One reason for delayed diagnosis is that patients are less likely to experience these periods as pathological and thus tend not to present when they feel this way.
135 Further, Dr Geffen gave evidence that he had diagnosed Mr Tropoulos as suffering adult Attention Deficit Hyperactivity Disorder (ADHD).
136 None of this evidence was disputed by the respondent.
137 There is no dispute between the parties that, in light of these diagnoses, at all material times Mr Tropoulos suffered from a disability, being a “disorder, illness or disease” within the meaning of s 4(1) of the DD Act.
Did Journey Lawyers fail to make the reasonable adjustments with the result that Mr Tropoulos was, because of the disability, treated less favourably by Journey Lawyers than a person without his disability would be treated in circumstances that were not materially different?
138 There is no doubt that, at times material to these proceedings, Journey Lawyers was aware of Mr Tropoulos’ disability. Having said this, Journey Lawyers strongly disputes that it was aware at material times of the extent of Mr Tropoulos’ disability, including his need for hospitalisation.
139 Further, there is no doubt that, at times material to these proceedings, Mr Tropoulos was, because of his disability, unable to work full-time with Journey Lawyers at the same level that he had prior to August 2015.
140 By way of introduction it is relevant to note that s 5(1) and s 5(2) of the DD Act identify two circumstances where a person directly discriminates against a person with a disability (defined in the section as an “aggrieved person”). Section 5(1) defines direct disability discrimination as being when, because of the aggrieved person’s disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. Section 5(2) is enlivened when the discriminator does not make, or proposes not to make, reasonable adjustments for the person, and the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
141 The rationale of s 5(2) of the DD Act is explained in the Explanatory Memorandum to the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth), which relevantly stated:
36. New subsection 5(2) provides that a person is discriminating against another person if he or she fails to make, or proposes not to make, reasonable adjustments for the person with disability, where the failure to make such adjustments has, or would have, the effect that the person with disability is treated less favourably than a person without disability in circumstances that are not materially different. ‘Reasonable adjustments’ is defined in subsection 4(1) (Item 13) as adjustments that do not impose an unjustifiable hardship on the person making the adjustments.
37. This new subsection implements Productivity Commission Recommendation 8.1, which recommended that the Disability Discrimination Act should be amended to clarify that there is a general duty to make reasonable adjustments, with the exception of adjustments that would cause unjustifiable hardship.
38. Until relatively recently, the general view, including in the case law, was that that the Disability Discrimination Act impliedly imposes such a duty if such adjustments are necessary to avoid unlawful discrimination—subject to the defence of unjustifiable hardship. This view was supported by the Explanatory Memorandum of the Disability Discrimination Act and Second Reading Speech delivered when the Disability Discrimination Act was first enacted. However, comments made by members of the High Court in 2003 cast doubt on the existence of this duty (Purvis v NSW and the Human Rights and Equal Opportunity Commission [2003] HCA 62).
39. The proposed amendment removes this doubt by making explicit the duty to make reasonable adjustments, which are defined to exclude adjustments that would impose unjustifiable hardship. This will return the status of the law to the original intention when the Disability Discrimination Act was introduced.
142 It follows that although both ss 5(1) and 5(2) of the DD Act incorporate similar concepts, s 5(2) specifically contemplates the requirement that a person make reasonable adjustments to accommodate a person with a disability.
143 In his pleadings Mr Tropoulos does not specifically identify or rely on either ss 5(1) or 5(2) of the DD Act. However it is apparent from both his amended statement of claim and submissions that, in fact, he relies on s 5(2) throughout his amended statement of claim. More particularly, that Mr Tropoulos specifically pleads a case referable to the alleged failure of Journey Lawyers to make or propose to make “reasonable adjustments” for him in light of his disability clearly points to a claim of direct discrimination within the meaning of s 5(2) of the DD Act.
144 Substantiation of a case under s 5(2) requires establishment of the following elements:
(a) The discriminator does not make, or proposes not to make, reasonable adjustments for the person, and
(b) There is a causal connection between that failure and the effect on the aggrieved person. That causal connection is that the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
145 The onus lies on the aggrieved person to substantiate these issues.
146 Whether Journey Lawyers made, or refused to make, “reasonable adjustments” for Mr Tropoulos, is a key threshold issue for determination. This is particularly so where the evidence clearly establishes that Journey Lawyers endeavoured to take some steps to accommodate Mr Tropoulos’ circumstances. Fundamentally, Mr Tropoulos’ case is that, irrespective of the steps it took, Journey Lawyers failed to make reasonable adjustments for him within the meaning of ss 4 and 5(2) of the DD Act.
147 Although not specifically incorporated into the legislation, the Explanatory Memorandum to the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29] and [35] indicates that the concept of “reasonable adjustments” in the DD Act draws upon the term “reasonable accommodation” used in art 2 of the Convention on the Rights of People with Disabilities, to which Australia became a party on 17 July 2008. Article 2 of the Convention provides:
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
148 Elements of s 5(2) of the DD Act, including “reasonable adjustments” were examined by Mortimer J in Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220. In that case Mortimer J observed as follows:
18. The definition of “reasonable adjustment” is critical to the disposition of the issues in this proceeding. The explanatory material (see Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29], [35] (2008 Explanatory Memorandum)) acknowledges the concept of “reasonable adjustments” is drawn from the Convention on the Rights of Persons with Disabilities, although the term in the Convention is “reasonable accommodation”. Article 2 of the Convention defines reasonable accommodation in the following terms:
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
19. Australia became a party to the Convention on 17 July 2008. It acceded to the Optional Protocol to the Convention on 21 August 2009, which became effective in Australia on that date. Article 5(3) of the Convention provides as follows:
In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
20. Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia’s international obligations under the Convention. If there is a constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is consistent with those obligations should be preferred, insofar as the text and context otherwise allow…
21. This approach is important when the breadth of the statutory definition of “reasonable adjustment” is considered. Section 4 of the DDA defines “reasonable adjustment” in the following terms:
an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
22. Thus, s 4 has effect as a deeming provision. The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
23. To what does the adjustment relate? By s 5(2), it is made “for” the person with a disability. It is not made “to” the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification “for” the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an “adjustment” that, a decade or two ago, may have been little more than a theory.
24. Similarly, the range of disabilities covered by the DDA, evident from the definition of “disability” in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same “disability” but how that “disability” manifests itself, and the impact it has on an individual’s capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration “for” a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment “for” a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.
25. There is one relevant qualification to the breadth of what can constitute an “adjustment” for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.
26. It will be noticed that the definition of “reasonable adjustment” in s 4 uses the singular, and s5(2) uses the plural. For the purposes of the operation of s 23 of the Acts Interpretation Act 1901 (Cth), in my opinion the DDA exhibits a contrary intention. The use of the plural in the provision which imposes an enforceable obligation conveys an intention to capture the variety of circumstances, and the variety of disabilities, which may need to be accommodated. More than one adjustment may be necessary. More than one option may be available. The use of the plural is consistent with the imposition of an obligation that may require several steps, alternatives, processes or modifications for one person. The use of the plural allows for that possibility.
27. The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. I deal with these provisions in more detail at [35] and [57] below. One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.
149 While the applicant in a case under the DD Act must establish discrimination by way of failure to make or propose to make reasonable adjustments, it is open to the respondent to claim that the “reasonable adjustments” claimed by the applicant were not “reasonable adjustments” within the meaning of s 4 of the DD Act because they would impose an unjustifiable hardship in terms of s 29A of the DD Act. As was made clear in State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 at [9], the onus shifts to the respondent to establish this point.
150 In this case, Journey Lawyers have pleaded unjustifiable hardship in making the reasonable adjustments allegedly required by Mr Tropoulos.
151 Section 5(2) of the DD Act raises the question whether the alleged discriminator failed to make reasonable adjustments, and then the effect of the failure to make those reasonable adjustments. Mr Tropoulos’ case in essence is that the reasonable adjustments Journey Lawyers should have made for him, but did not, were:
The provision of half-day working days, five days per week (rather than three alternate days working between 8.30 am and 5.00 pm).
Not making him work as if he were not subject to a disability. In particular Mr Tropoulos complains that he was required to instruct Mrs Galvin in court on his first day back during the second return to work, which was inappropriate for him.
Providing briefings on his return to work, including organising a briefing about the client files being attended to by Mr Tropoulos prior to his absence since 18 August 2015, and a briefing on his return about administrative or staffing changes which had occurred while he had been absent from 18 August 2015 to 22 September 2015.
Returning to him the clients whose files he had before his absence, and not allocating him legal aid clients.
Allowing him to return to the office he had occupied prior to his absence.
Allowing him to retain his substantive title, conditions and salary as Senior Associate with Journey Lawyers.
Engaging in mediation with him pursuant to cl 25 of his contract of employment.
152 It is appropriate to consider each of these claimed reasonable adjustments, in turn.
Working half-days five days per week – whether reasonable adjustment
153 First, it is clear that Mr Tropoulos’ primary complaint of discrimination against him by Journey Lawyers was that Journey Lawyers failed to make reasonable adjustments in not agreeing to him working half-days five days per week for the first few weeks of his return to work. In particular, I note the following interchanges between Mr Tropoulos and Mr Morris of Counsel for Journey Lawyers:
Yes. Then you say in paragraph B you were required to carry out work as if you were not subject to a disability. What does that mean?---Meaning I was returning to work. I needed time to get back on my feet and I needed time to have breaks and that it would be suggested by my doctor half days would be better to get back into that routine.
I thought this was a separate point. Paragraph A, you make the complaint about working full hours three days a week. And then paragraph B I thought was a separate complaint about requiring to carry out work as if you weren’t subject to a disability. Was there something other than working three days a week that, so far as you’re concerned, amounted to requiring you to carry out work as if you were not subject to a disability?---No, I don’t think so.
(Transcript p 120 lln 33-44)
154 And later:
In fact, you don’t know of any employee at Galvin [sic] who has ever worked half days?---That’s right.
But you still say that’s discrimination, do you?--- Well, the half days was for a short period of time in order to get to a period of – of good functioning. It wasn’t indefinite.
(Transcript p 124 lln 32-35)
155 During the hearing Mr Tropoulos gave evidence of his view that it is “probably better” to be in the office half a day every day rather than to miss a day, as he could return calls the following day or do the required work rather than someone else doing the work on the day the lawyer is not there (transcript p 119 lln 32-42). Further, Dr Geffen gave evidence at [41] of his affidavit affirmed 16 May 2017 that he “typically” recommended half time attendance 4-5 days per week to regularise work attendance.
156 Mr Tropoulos made much of his submission that Journey Lawyers was, or should have been, aware that he required half-day working days, five days a week, as a reasonable adjustment of his working hours to cope with his disability, and that in light of this knowledge the firm failed to make or propose to make reasonable adjustments for him in these terms. He also pleaded that Journey Lawyers “failed to follow Dr Geffen’s return to work program and implemented its own program”. However:
At no stage did Dr Geffen inform Journey Lawyers that Mr Tropoulos was unable to sustain performance in the working environment for more than half a day at a time. Further, before his report of 20 May 2016, Dr Geffen did not indicate to Journey Lawyers the necessity of Mr Tropoulos working half days. I note Mr Galvin’s evidence that, insofar as Mr Galvin was concerned, in his letter of 13 October 2015 Dr Geffen had simply told Journey Lawyers of his advice to Mr Tropoulos to “follow your jointly developed plan for moderate and manageable work load and regular breaks of the first 2 weeks of his return”. I consider Mr Galvin’s evidence accurately represented the position. Dr Geffen communicated directly with Journey Lawyers with Mr Tropoulos’ consent, copying Mr Tropoulos into such communications. It follows that not only did Dr Geffen not inform Journey Lawyers that Mr Tropoulos should receive (or that he required) adjustments in the nature of attending half a day five days per week, but until May 2016 he made no particular recommendations to Journey Lawyers at all regarding the nature of hours Mr Tropoulos should work, and left it to Journey Lawyers and Mr Tropoulos to come to a “jointly developed” mutual arrangement which suited them. Importantly, Mr Tropoulos knew this because he had been copied to Dr Geffen’s communications to Journey Lawyers. I note that Mr Tropoulos conceded this point under cross-examination (transcript p 130 ln 27).
Dr Geffen gave evidence in his affidavit affirmed 16 May 2017 at [41] that he “typically” recommended half time attendance 4-5 days per week to regularise work attendance but accommodate the fatigue for sustained mental work that comes with resolving depressive illness, and that “my usual practice of commencing with ½ days was vetoed by the workplace as not suitable for their working environment”. I place little weight on Dr Geffen’s evidence as to what he “typically” recommended, in circumstances where no such recommendation had been communicated by him to Journey Lawyers at the times that Mr Tropoulos was endeavouring to return to work. Further, I reject Dr Geffen’s statement that “his usual practice of commencing with ½ days was vetoed by the workplace” – not only was no recommendation communicated by Dr Geffen to Journey Lawyers, but they did not “veto” any such recommendation by him.
Rather, I note that, in communicating with Journey Lawyers, it was Mr Tropoulos in his email to Ms Hawley of 1 October 2015 who had suggested a return to work on the basis of half-day working days for five days per week. Mr Tropoulos said in that email that his doctor had suggested that he work “for a few hours a day, 5 days for the first week or so”. However, I also accept Mr Galvin’s evidence that, in writing to Mr Tropoulos on 2 October 2015, he had counter-suggested that Mr Tropoulos work three alternate days per week as being more workable and beneficial, both for Mr Tropoulos and Journey Lawyers. Dr Geffen’s characterisation of this counter-suggestion as a “veto” was clearly taken up by Mr Tropoulos as a key part of his claim. However, I note that Mr Galvin’s suggestion of three alternate days per week followed Dr Geffen’s suggestion of a “jointly developed plan for moderate and manageable workload and regular breaks”, and that this suggestion was perfectly consistent with the development of such a plan. It is clear that, insofar as Journey Lawyers was concerned, the three alternate days per week was an arrangement suitable to Mr Tropoulos as well as the firm, was an acceptable alternative to the half-day five days per week suggested by Mr Tropoulos, and constituted a reasonable adjustment to his working hours.
I also note that Mr Galvin specifically invited Mr Tropoulos to let him know if three alternate days per week were “too much” for him. Mr Tropoulos did not argue against this – rather he agreed with this proposal. Mr Tropoulos gave considerable evidence about his fear of losing his job, his intimidation by Mr Galvin, and his shame in respect of his condition (see, eg, transcript p 120 lln 15-17; p 125 lln 45-47; p 193). It may be that these feelings motivated a reluctant acceptance on Mr Tropoulos’ part of the suggestion of three alternate days per week work, rather than him simply telling Mr Galvin that he would prefer an arrangement of five half-days per week. However it was also evident, both from the firm’s written correspondence to Mr Tropoulos and from Mr Galvin’s conduct in communicating with Dr Geffen and endeavouring to accommodate Mr Tropoulos’ needs, that Journey Lawyers greatly valued Mr Tropoulos as an employee and was very keen to have him return to fee-earning productivity. In such circumstances it is possible that an alternative arrangement would have been agreed between Mr Tropoulos and Journey Lawyers of other than three alternate days per week if Mr Tropoulos had insisted on such an alternative. He did not.
157 In these circumstances, I am not satisfied that Dr Geffen prescribed a return to work program, which was communicated to Journey Lawyers.
158 Further, in circumstances where neither Dr Geffen nor Mr Tropoulos informed Journey Lawyers that Mr Tropoulos required arrangements whereby he worked half-days five days per week, but rather where Mr Tropoulos agreed to the alternative arrangement of three alternate days per week, can it be said that Journey Lawyers did not make, or proposed not to make, “reasonable adjustments” for him in those terms? Section 5(2) of the DD Act contemplates a positive action on the part of the alleged discriminator, with knowledge of the circumstances of the person with the disability. If the alleged discriminator makes inquiries of the disabled person as to his or her needs in the workplace, but is not put into possession of knowledge of the nature of the disability, and the needs of the disabled person, can it be said that in not implementing reasonable adjustments required by that person, they had failed to make, or proposed not to make, those reasonable adjustments? I would have thought the answer must be “no” – practically, 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.
159 To that extent, it cannot be said that Journey Lawyers failed to make or propose to make reasonable adjustments for Mr Tropoulos when they did not know that, from the perspective of Mr Tropoulos and apparently also in the view of Dr Geffen, such reasonable adjustments were necessary for him to cope within the workplace.
160 However, the situation is complicated by the evidence that, during his second return to work, Mr Tropoulos struggled to maintain hours working for Journey Lawyers. Mr Galvin gave evidence that Mr Tropoulos lacked confidence, lacked the ability to make decisions, and that Mr Tropoulos did not strictly work three alternate days per week during this period. A question arises then as to whether Journey Lawyers should have been aware of this and made, or proposed to make, reasonable adjustments for Mr Tropoulos at some point during his second return to work period by offering him half-day working days. As Mortimer J observed in Watts at [24]:
An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.
161 The definition of “reasonable adjustment” in s 4 of the DD Act contemplates that any adjustment, which is identifiable and available, is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. As was pointed out in each of Watts, Huntley and Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 (at [143]), the DD Act does not leave it to the alleged discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable” – the word “reasonable” has no qualitative character in its context but rather is simply part of a term defined by legislative declaration of what is outside the term. A possible “adjustment” is reasonable within the meaning of the DD Act, provided it does no impose unjustifiable hardship.
162 Of course, the act or proposed act must be an adjustment, namely an alteration or modification. Importantly there is no qualification referable to the extent of an adjustment – for example “minor” or “major”. As a general proposition, an “adjustment” can be extensive (see by way of illustration Re Rochdale and Haslingden [1899] 1 QB 540 where the Court held that loss by one county and the gain by another of an area of land was a matter of “adjustment”).
163 As Mortimer J pointed out in Watts, s 4 of the DD Act contemplates that a reasonable adjustment be made for a person. It was clearly possible for Journey Lawyers to make provision for Mr Tropoulos to work other than full time. In fact they did so – three alternate days per week, with – according to Mr Galvin – provision for Mr Tropoulos to come and go as suited him. To that extent, it follows that a “reasonable adjustment” Journey Lawyers could have made for Mr Tropoulos was for him to work half-days five days per week.
164 In considering whether Journey Lawyers failed to make or failed to propose to make reasonable adjustments for Mr Tropoulos by way of half-days, it is first useful to examine exactly what Mr Tropoulos’ working arrangements were when he returned for the second return to work period. Mr Tropoulos was unable to work beyond one day for the first return to work period, but the evidence before the Court is that he was able to maintain some working hours between October and December 2015. However, notwithstanding the agreed position of Journey Lawyers and Mr Tropoulos that Mr Tropoulos work three alternate days a week, it is not in dispute that Mr Tropoulos did not work three alternate days a week, every week, during the second return to work period.
165 Mr Galvin gave evidence that, in fact, Mr Galvin let Mr Tropoulos “come and go as he wished in the belief that it was all he could manage”, hoping that Mr Tropoulos could eventually return to full working capacity. Counsel for Mr Tropoulos challenged Mr Galvin in respect of this evidence, in the following terms:
Firstly, I suggest to you that when you look at the documentation, that, in terms of the work that Mr Tropoulos did – I will withdraw that. When you look at the documentation in terms of the attendance of Mr Tropoulos, during this period from 19 October to, I think, 4 December, Mr Tropoulos’ attendance was not an ad hoc arrangement?---It depends, I suppose, what you mean by ad hoc.
(Transcript p 251 lln 43-47)
166 And further:
HER HONOUR: How do you define ad hoc?---Well – we made – sorry, defining ad hoc – an arrangement – we had an arrangement that – a general arrangement, but which changed from week to week.
Thank you.
MR WATSON: All right. Okay. But in terms of Mr Tropoulos’ attendance at Journey Law, the arrangement was that he was to work Monday, Wednesday, Friday, 8.30 to 5?---9 to 5, yes.
Right. 8.30 to 5 is, in fact, the amount of time which is used in the amended defence. Was that not the arrangement?---His employment contract said 9, I think, from memory, but normally he would be in at 8.30.
But in terms of what you wanted Mr Tropoulos to do, it was those three days, working 8.30 to 5, correct?---That was the aim, yes.
Okay. It was more than an aim, Mr Galvin. It was what you required him to do?---Well, from our point of view, it was an aim, because some days, he only worked two days a week, and we made no objection or raised no concerns about that.
Mr Galvin, the working those three days, from 8.30 to 5, was something that you required him to do?---We asked him to do that.
Yes. Now, on occasions, he didn’t do that; correct?---Correct.
And I suggest to you, if he didn’t do that on a particular day, it was because he was ill; would you be able to disagree with that?---We assumed that he wasn’t up to coming in.
(Transcript p 252 lln 5-33)
167 And later:
MR WATSON: Whether it be 8.30 or 9 o’clock, the fact was - - -?---Yes.
- - - it was that sort of span of hours, 8.30 to 5, 9 to 5. That’s what you expected, and that’s what you required him to do; correct?---That’s what we were aiming at him doing, yes.
No, that’s what you required him to do. That was the direction that you gave him?---But – the – we had an agreement that he would work three days a week. When he was unable to do that, we took no objection, because it was in our interests that – well, to be honest, it was in our interests that he got better.
HER HONOUR: Why is that, Mr Galvin?---Your Honour, Steve had been with us for – sorry; Mr Tropoulos – had been with us for quite a few years; he was a reasonably good lawyer. He worked for the firm well. And he started to – well, we didn’t know the extent of his illness at the time, so we just didn’t know, and we were just trying to get – we weren’t putting any pressure on him as to dollars, or pay, or hours, because we wanted him to recover back to his old self.
Thank you.
MR WATSON: Mr Tropoulos, at Journey Lawyers, before August 2015, had excelled as a lawyer, hadn’t he?---That’s correct.
And, in fact, his billings were such that it entitled him to a salary increase?---That’s correct.
And his salary went from his contract of employment of $100,000 to $120,000; correct?---Yes.
All right.
(Transcript p 253 lln 1-30)
168 In his affidavit dated 10 October 2017 Mr Galvin gave evidence in tabular form derived from a printout out from PCLaw, Journey Lawyers’ accounting and billing system, showing the days worked by Mr Tropoulos, the hours he billed, and the monies payable by Journey Lawyers in respect of Mr Tropoulos, during his second return to work. This table was as follows:
Week | Date the applicant attended work | Hours billed recorded by the applicant | Value of work | Gross salary paid (including tax) | Holiday pay personal leave and sick leave paid | Superannuation paid to Sunsuper |
19.10.15 to 23.10.15 | 19 October 2015 20 October 2015 23 October 2015 | 7.00 7.20 4.40 | 126 an hour 126 an hour 126 an hour | $1,384 | Nil | $131.54 |
26.10.15 to 30.10.15 | 26 October 2015 30 October 2015 | 1.7 2.7 | 395 an hour 395 an hour | $923.08 | $461.54 | $131.54 |
2.11.15 to 6.11.15 | 2nd November 4th November 6th November 2015 | 0.9 4.4 4.1 | $1,384.62 | Nil | $131.54 | |
9.11.15 to 13.11.15 | 11 November 2015 13 November 2015 | 4.2 0.4 | $923.08 | $87.69 | ||
16.11.2015 to 20.11.2015 | 16 November 2015 20 November 2015 | 2.6 2.0 | $923.08 | $461.54 | $131.54 | |
23.11.2015 to 27.11.2015 | 23 November 2015 25 November 2015 27 November 2015 | 1.5 1.6 1.4 | $1,384.62 | nil | $131.54 | |
30.11.2015 to 4.12.2015 | 2 December 2015 4 December 2015 | 0.2 0.3 | $659.34 | $725.28 | $131.54 | |
Period from 7.11.2015 to 25.12.2015 | nil | nil | $3,238.69 | nil | $307.67 | |
TOTAL | $10,820.51 | $1,648.36 | $1,184.60 |
169 Counsel for Mr Tropoulos put to Mr Galvin that Journey Lawyers had directed Mr Tropoulos to work three alternate days a week. Mr Galvin said, inter alia:
Ms Hawley is saying that you have confirmed that Mr Tropoulos will come back three days per week, the same as last time. That’s what you said?---Yes.
Right. And the same as last time was Monday, Wednesday and Friday?---I think you would say that was aspirational because it was at a tentative arrangement in that you only work Monday, and as for a direction, we didn’t ever send him a – an email saying, “You failed to work Wednesday or Friday where it’s part of a return to work effort.” We tried and it didn’t work, so we just moved on.
Well, you’re not answering the question, with respect, Mr Galvin?---Sorry.
I’m saying to you that whether you call it a directive or whatever, the arrangement was – the understanding was that he was to work Monday, Wednesday and Friday?---Well, I think there’s a difference between a directive and an understanding that the general – the general thing was that he – he – he would be working Monday, Wednesday and Friday and if that was a problem, he would let us know.
(Transcript p 277 lln 19-34)
170 During cross-examination of Mr Galvin, Counsel for Mr Tropoulos challenged Mr Galvin’s accuracy in respect of Mr Tropoulos’ working hours during that period, and put to Mr Galvin the possibility that Mr Tropoulos could have worked non-billable hours which were not recorded in the firm’s billing processing system, PCLaw (see transcript p 246 lln 20-21). Mr Galvin conceded that there could be some minor inaccuracies but overall relied on the PCLaw data. I note the following interchange between Mr Watson for the applicant and Mr Galvin:
All right. All right. So, in terms of knowing when Mr Tropoulos worked, you can only go off what’s recorded in the documentation like PCLaw?---I can – I go off the – there was no reason for me to check on Mr Tropoulos as whether he was at work or not. Generally, he was – he was. However, our systems were that he would record his time when he was working in PCLaw, and he had been there for years doing that system, so he was – I was comfortable he did that. And secondly, in terms of attending work or being sick or not attending work, the protocol was that he would notify Julie, as would any staff member if they were at work or not at work, and that would then get recorded in his pay.
(Transcript p 249 lln 21-29)
171 Subsequently Mr Galvin stated during cross-examination:
No, please continue to explain what you were saying?---So the practice is that the lawyers put in their time entries when they do work. They normally will always put in their billable work, and if there’s non-billable works they will sometimes put that in as well.
Yes?---The billable work then goes to the system for sending bills out and whatever. When I started to collate this, I did notice that a couple of times 5 entries that Mr Tropoulos had put in during this period were actually on the wrong dates. That’s not an uncommon occasional problem I have with the lawyers because they don’t close the accounting system down at the end of the day. When they open it up the next day it is still open from – and transmits the wrong unless they manually change it, so sometimes you get little errors like that.
(Transcript pp 250-251)
172 While various discrepancies in hours worked by Mr Tropoulos were highlighted by Counsel for Mr Tropoulos during the cross-examination of Mr Galvin, as I noted earlier in this judgment I am satisfied that the discrepancies were minor. It may also be that Mr Tropoulos worked some hours at Journey Lawyers which were not billed or accounted for by PCLaw. I am satisfied however that the tabular evidence of Mr Galvin is sufficiently accurate. Indeed, Mr Tropoulos’ evidence was consistent with Mr Galvin’s evidence as to his days and hours of working. I note, for example, the following exchange between Mr Morris of Counsel for the respondent and Mr Tropoulos during cross-examination:
Yes. And you weren’t able to keep up even with three days a week, were you?---No. I did three days a week some weeks and two days a week some weeks. The days I didn’t do three – sorry. The weeks I didn’t do three days was because I was ill.
Because you were ill?---Yes.
With your depression or ill with something else?---Either or. I can’t remember.
Can’t remember. All right. Do you agree with the summary that Mr Galvin has provided as to the days that you worked?---Yes.
And do you agree with the summary that he has provided of the billable hours which you recorded on those days?---I – well, I think so. I don’t know what I billed. I can’t remember what I billed. You can change things on there. The initial appointments don’t get billed – don’t – we don’t record them.
(Transcript p 139 lln 1-15)
173 It is clear that, after the first week of the second return to work period, Mr Tropoulos did not work full days on the days he attended the office and further did not attend each of the alternate working days. It appears that this occurred with the full knowledge and consent of Journey Lawyers. As I have already found, Mr Galvin was a credible witness, and his evidence is plausible. It makes perfect sense, in light of Mr Tropoulos’ performance as a lawyer with Journey Lawyers prior to August 2015, the evidence that he was well thought of as a lawyer such that he would be appointed a Senior Associate (which position he retained during the second return to work period), the preparedness of the firm to liaise with Dr Geffen, the awareness of Mr Galvin of Mr Tropoulos’ condition, and the preparedness of the firm to discuss with Mr Tropoulos the hours with which he would be comfortable working, that, in circumstances where Mr Tropoulos was unable to work particular days at Journey Lawyers during his second return to work, the firm accommodated those absences. Mr Galvin deposed that Journey Lawyers gave Mr Tropoulos full leeway in returning to work, attending as and when he chose on the days that he chose – in my view the totality of the evidence before me supports this assertion.
174 It follows, notwithstanding Mr Tropoulos’ complaint that Journey Lawyers failed to make or propose to make reasonable adjustments for him by permitting him to work half-days five days per week, that in fact Journey Lawyers did not insist on Mr Tropoulos working full working days on the alternate days, and further that Journey Lawyers allowed Mr Tropoulos to work half- days when it suited him. The DD Act does not require any level of formality to attend the making of reasonable adjustments or relevant proposals. Notwithstanding that the parties aspired to Mr Tropoulos working full days on alternate days of the week, the informal arrangement which appeared to be implemented from shortly after the second return to work period between August and December 2015 (namely Journey Lawyers’ consent to him working such hours as he could) accorded with his requirements of not working full days.
175 To that extent, in his working hours on his return to work, I am satisfied that Journey Lawyers did make reasonable adjustments for Mr Tropoulos within the meaning of s 5(2) of the DD Act.
176 In respect of those working hours, and noting that Mr Tropoulos’ disability continued past the first few weeks of his second return to work, a question arises whether Journey Lawyers failed to make reasonable adjustments for Mr Tropoulos within the meaning of s 5(2) of the DD Act beyond those first few weeks by failing to formally agree to Mr Tropoulos working part time, perhaps indefinitely. Mr Tropoulos stated during the hearing, for example:
Go over to the next paragraph, paragraph (b), commercial litigation. If you’re in a three-week commercial trial in the commercial list of the Supreme Court or in the – a commercial matter in this court, you can’t possibly do that if you’re on a part-time or fractional employment, can you?---It depends how the firm works and how people work with each other. I – I think people can work part-time. A lot of women work part-time, for instance, who have young children and are litigators – appear in this court and downstairs.
Well, do you agree that it would be more convenient to do conveyancing part-time than to do commercial litigation part-time?---Conveyancing still has a lot of demands upon it, too. It depends on the systems of the firm and what they need and how well people work as teams, what’s being done. But I think that part-time can be – you can do part-time in any area of law.
(Transcript p 152 lln 23-35)
177 An important point to note at this stage is that, at all material times, Mr Tropoulos claims he sought a graduated return to work – namely hours fewer than full time, graduating back to full time. It does not appear that it was ever contemplated by either Journey Lawyers or Mr Tropoulos that he return to work permanently on a part-time basis.
178 In any event, Journey Lawyers pleaded that accommodating Mr Tropoulos’ request to work fractional days would impose an unjustifiable hardship on the firm within the meaning of s 21B of the DD Act.
179 In determining whether a hardship that would be imposed on the alleged discriminator would be unjustifiable, s 11 of the DD Act, requires that all relevant circumstances of the particular case be taken into account. Relevantly for present purposes, this is defined by s 11(1) to include:
the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
the effect of the disability of any person concerned;
the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; and
the availability of financial and other assistance to the first person;
180 The onus lies on Journey Lawyers to establish “unjustifiable hardship”: s 11(2).
181 The evidence before me indicates that lawyers specialising in family law can effectively work part-time. This was clear from the evidence of Ms Manderson, and indeed may be inferred from the preparedness of Journey Lawyers to accommodate Mr Tropoulos in respect of alternate days of work.
182 However Journey Lawyers pleaded that the practice of family law is generally not conducive to part-time or fractional employment comprising less than minimum acceptable working hours because:
in most courts and tribunals there is only limited scope for listing matters on a date and time which is suitable to a part-time or fractional employee;
major litigious matters often take more than one day;
even for litigious matters which are not expected to take more than one day, preparation for a hearing generally requires the availability of the relevant legal practitioner in the lead-up to the hearing;
family law practitioners need to regularly participate in court proceedings to stay in touch with the practice and jurisprudence of family law courts; and
part-time or fractional employment is not compatible with the reasonable expectations of clients that they will, for example, have ongoing access to the legal practitioner handling their file, particularly where urgent or unforeseen exigencies cause concern to the client.
183 Mr Galvin gave evidence supporting this position. In particular, in his affidavit dated 10 October 2017 Mr Galvin deposed that it would not be suitable for his firm to have legal practitioners part time because:
(a) When a family law application is filed the Court almost always allocates a court date without consultation with the law firm.
(b) If there is an interim hearing then the lawyer usually spends several hours a day on the day before the interim hearing preparing for the Court hearing as my employed lawyers are required to usually do their own advocacy and not brief Counsel for interim matters.
(c) Interim Court hearings can involve the lawyers spending whole days at Court because if a matter does not get on before 1.00pm then those matters are adjourned to 2.15pm and may be heard late in the afternoon, therefore the proposal of the Applicant working just in the mornings would have meant that his clients would face the prospect of a lawyer who is not known to him or her taking over the case. This new lawyer would not know the case nor have prepared for the Court hearing. This would be unprofessional and not meet the client's reasonable expectations. Our policy is that the Journey clients have the full attention of their lawyer during the interim hearing day.
(d) As to conciliation conferences, clients expect their lawyers be well prepared for a conciliation conference and after the mediation they contact their lawyer to go over facts or provide up to date information the day before a conference.
(e) The conferences often go on for several hours, sometimes all day, so from 9.00am to 5.30pm or even later. The clients expect their lawyer to be with them advocating them and supporting them especially in final stages of a mediation when often difficult concessions are being made by clients and where their lawyer, who has full knowledge of their case, can be there to guide them.
(f) It would be completely unacceptable for clients to be unable to have their lawyer with them for the whole day.
184 Mr Galvin deposed that Mr Tropoulos’ proposal of working mornings only would mean he could not take on a client whose matter could end up in mediation or litigation, and that eliminates nearly all family law clients.
185 Ms Manderson gave the following evidence during cross-examination at the hearing:
All right. You see, in paragraph 19, it says this:
It has been and remains a common feature of family law clients that they find themselves frequently for the first time in their lives in circumstances, firstly, of heightened emotional vulnerability.
Now, you would agree with me that family law is not the only aspect of law where clients may have a heightened emotional vulnerability?---I would certainly agree that that’s the case, but I think the extent is very different in family law.
Okay. Extent in what – the severity or the number?---Both really. For example, I deal with a number of dispute matters that are not family law. They don’t have the heightened emotional sense in it that family law does.
All right?---It’s a vastly different type of practice.
Have you had any experience with, for example, workplace bullying claims?---Yes, I have.
Would you not agree that that is a – an area where there would be heightened vulnerability?---There certainly is heightened - - -
Sorry. Heightened emotional vulnerability?---There certainly is heightened emotional vulnerability to a degree, but I don’t think it falls into the same category as family law.
HER HONOUR: Can I ask why not?---Your Honour, frequently in terms of family law, we’re dealing with much closer relationships. Invariably, when people come to see a family lawyer, their partnership with their spouse has broken down. They’re under a great degree of stress. When family lawyers are talking to clients, they’re often asking about the most personal and detailed account of their lives that they will ever get. I appreciate and I’ve had experience with workplace bullying matters, particularly where they involve sexual harassment, that have come close, but when you’re talking to a client who has experienced rape from their partner, for example, it – it’s not in the same category.
Thank you.
(Transcript pp 312-313)
186 Mr Tropoulos submitted that, taking into account the relevant daily time summaries, there did not appear to be any suggestion advanced by Journey Lawyers that the billable time worked by Mr Tropoulos could not have been worked on a half-day.
187 I am satisfied that, as a general proposition, it is possible for a lawyer practising family law to work part-time. However I am also satisfied that it may not be convenient for a law firm conducting such a practice to engage lawyers to work fractions of working days, even on a temporary basis, given the needs of family law clients, and in particular the fact that the stresses on family law clients are such that it is highly desirable that lawyers be available during business hours on the days they are in the office. Whether Mr Tropoulos worked the required billable hours during a half-day period is not to the point.
188 I also note Mr Galvin’s evidence as to the overheads incurred by Journey Lawyers. In particular I note the following evidence of Mr Galvin:
28. It was clear that his performance was significantly affected and the figures indicated he was performing at one tenth of his previous capacity. From a financial perspective, his lack of performance was severely affecting Journey financially.
29. At the same time, Journey was still covering the Applicant's wages and the other fixed overheads relating to providing the support necessary to a full time lawyer such as rent, support staff and other outlays. In the financial year 2015/2016, the expenses of Journey including wages was $1,894,684. The number of lawyers can vary but at the time there were nominally nine lawyers. Based on our overheads, each lawyer costs on average $210,520 per annum. After adjusting for their salaries, the average cost of support for lawyers each year is between $80,000 and $100,000 per annum. Therefore, over a four month period the cost of support for lawyers is between $25,000 and $35,000. This is in addition to their wages.
30. As a firm we adopt a "three times rule" for pay and performance. This means a lawyer is expected to bring in three times their salary. In the Applicant's case, based on his salary of $125,000, he should have brought in $375,000 and for the period September to December 2015, he would have been expected to bring in one third of $125,000, so on a 5 day fortnight which he was effectively working, he should have brought in $20,000 at least. He brought in only $11,607.00.
31. During the period 19 October 2015 to 4 December 2015, we paid the Applicant:
Gross wages $7,582
Annual Leave $1,121
Personal Leave (sick leave) $ 528
Superannuation $ 877
TOTAL $10,108
This information is from the company's MYOB pay records.
….
33. However, in the long term, I could not continue to suffer detriment at my office once it became apparent that the second attempted return to work had failed.
189 I note that Journey Lawyers is not a large law firm. Circumstances may be different for a larger private firm, or a government department, with greater resources, however it is the prospect of unjustifiable hardship to Journey Lawyers that is in question in this case. I accept Mr Galvin’s evidence as credible, and find that the financial strain to the firm in respect of its overheads, including salary, payable in respect of Mr Tropoulos in the event that he worked fractions of days, constituted an unjustifiable hardship to Journey Lawyers within the meaning of s 11 of the DD Act.
190 For all of these reasons I am satisfied that Journey Lawyers did not fail to make, or propose to make, reasonable adjustments for Mr Tropoulos by failing to arrange for him to return to work on the basis of half-days, five days per week, either initially on his return to work or at a later point during his return to work.
191 However even if Journey Lawyers had failed to make, or failed to propose to make, reasonable adjustments for Mr Tropoulos in these terms, I would not find this aspect of Mr Tropoulos’ claim to be substantiated. This is because I am not satisfied that the effect of the failure would have been that he was treated less favourably than a person without the disability would be treated in circumstances that were not materially different.
192 Assuming that an alleged discriminator did not make, or proposed not to make, reasonable adjustments for a person, “discrimination” within the meaning of s 5 of the DD Act requires that the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different (s 5(2)(b)).
193 Mr Tropoulos submitted that the phrase “less favourable treatment” invites comparison between the treatment that he received and that which may have been received by another person, and that the person to be compared with (the comparator) need not be an actual person but can be an hypothetical person.
194 In Watts, Mortimer J observed:
250. In the circumstances of this case then, the comparator must be a person without a psychological condition of the kind suffered by Ms Watts. There is no reason in principle why an appropriate comparator in a given case might not be a person with a different disability. There may well be circumstances where the absence of reasonable adjustments means people with certain kinds of disabilities are treated less favourably than persons with other kinds of disabilities: it would not advance the purpose of the legislation for such circumstances to be outside the protection otherwise contemplated by the DDA…
251. One of the difficulties with the comparators suggested by both parties, and indeed many of the arguments on other aspects of unlawful discrimination by both parties, is they ignore what I consider to be a critical fact: namely, that Ms Watts was not away from the workplace when what in my opinion was the act of discrimination occurred. She was in the workplace, performing alternative and modified duties for Mr Schell. This is not, in my opinion, a “return to work” case at all. It is about a return to an employee’s contracted position.
252. In my opinion, for the circumstances here to be “not materially different”, as s 5(2)(b) requires, the (hypothetical) comparator Australia Post employee must be in the circumstances facing Ms Watts in approximately February 2010. That is, she was at work, performing modified or restricted duties in another part of Australia Post’s business, performing well and to her supervisor’s satisfaction. She was not in her contracted role as bid manager, and had not been for some time. In order for the circumstances to be “not materially different”, the comparator must, in my opinion, be performing modified or restricted duties because of an injury found to be work related. Like Ms Watts, the comparator will have a long and good performance record with Australia Post and will be willing to return to her position as bid manager. Like Ms Watts, there will be no evidence to suggest that the comparator will ultimately be unable to return to her position as bid manager.
253. Where there was no apparent difficulty with the employee continuing (at least for some period) in the modified or restricted duties, and no suggestion the person would ultimately be unable to return to her position as bid manager, would Australia Post have required such an employee instead to provide further medical information setting out whether and how that employee could return, substantively straight away, to the full-time position as bid manager for which she was employed? That is, effectively, what Ms Scott-Brown required of Ms Watts in and from February 2010. Would Australia Post have directed such an employee to take leave if the information was not provided?
254. In my opinion the answer to these questions is “no”. That is because Australia Post would, I infer, have continued to deal with that employee on the basis of rehabilitating her from her work-related injury and effecting a transition back to her position as bid manager. For example, in my opinion, if a bid manager had a back injury which was work related but the employee was back at work on modified duties, I find Australia Post would have let that employee remain at work and transition back to a bid manager position.
255. Without the adjustments being made for her, Ms Watts’s psychological condition meant she could not return to a full-time position as bid manager in February 2010, when Australia Post (through Ms Scott-Brown) first raised the matter of her returning to this position, nor by 18 May 2010 when Australia Post directed her to remove herself from the workplace and go on leave. This outcome, for Ms Watts, was less favourable than a comparator employee.
195 Mr Tropoulos submitted that the appropriate comparator in his case was an employee, entitled to receive workers’ compensation, in respect of whom an employer had obligations under s 228 of the WCR Act. Section 228 requires the employer of a worker who has sustained an injury to take all reasonable steps to assist or provide the worker with rehabilitation for the period for which the worker is entitled to compensation. Further, Mr Tropoulos submitted that the rehabilitation must be of a suitable standard as prescribed under a regulation, namely s 116 of the WCR Regulations which refers in turn to guidelines made by the Regulator for the purpose of the section.
196 In Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2013) 217 CLR 92 the High Court considered relevant aspects of the DD Act, including the concept of “less favourable treatment”. I note in particular the following observation of McHugh and Kirby JJ at [130]:
Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment. And loss of the Act's protection would not be limited to such dramatic cases as the blind and amputees. Suppose a person suffering from dyslexia is refused employment on the ground of difficulties with spelling but the difficulties could be largely overcome by using a computer with a spell checker. The proper comparator is not a person without the disability who cannot spell. Section 5(2) of the Act requires the comparison to be between a comparator without the disability who can spell and the dyslexic person who can spell with the aid of a computer that has a spell checker. When that comparison is made the employer will be shown to have breached the Act unless it can make out a case of unjustifiable hardship as defined by s 11 of the Act.
(Emphasis added.)
197 Further, Gummow, Hayne and Heydon JJ said:
222. It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
223. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
224. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
198 As the Full Court subsequently explained in Forbes v Australian Federal Police [2004] FCAFC 95 at [51], referring to Purvis:
By contrast, ‘disability discrimination legislation necessarily focuses upon a criterion of admitted difference’ (at 180 [199]). Hence the need for comparisons to be made with another person or group of persons ‘with whom it is useful and relevant to draw the comparison which is implicit in describing one person as “different” or “disabled” or “disadvantaged”’ (at 180 [200]).
199 While it may have been appropriate in Watts, I do not accept Mr Tropoulos’ submission that the appropriate comparator in this case was an employee in respect of whom Journey Lawyers had obligations under the WCR Act. A major point of distinction between this case and Watts was that the applicant in Watts had suffered a disability following an injury arising in the workplace, namely a psychological injury as a result of an incident concerning her non-selection for a leadership training program offered by Australia Post, which led to her lodging a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for compensation. In such circumstances it is not surprising that Mortimer J found an appropriate comparator to be an employee in respect of whom the employer had workplace obligations.
200 In this case it is clear that Mr Tropoulos was not suffering a work-related injury. I am not persuaded to simply accept Mr Tropoulos’ allegation that his underlying disability was “brought on or exacerbated by work-related circumstances” such that the appropriate comparator is the hypothetical employee suffering from a workplace injury. Indeed, if there were substance to this aspect of Mr Tropoulos’ complaint it would have been expected that he would have pursued a claim for such compensation.
201 In my view, a more appropriate hypothetical comparator in this case is an employee undertaking professional duties who experiences a condition such that they are unable to work full-time for a limited period of time pending resumption of full-time duties. I identify this comparator in circumstances where Mr Tropoulos has consistently stated that his complaint was the failure of Journey Lawyers to allow him to properly transition back into full time work. The condition experienced by the hypothetical comparator is not the same disability as that experienced by Mr Tropoulos – it could include for example recovery from a physical illness; it might not be a disability at all but rather be someone returning from leave whose family circumstances are such that they are unable to work full time for a period. A similar approach was taken by Bell J in Collier v Austin Health [2011] VSC 344; (2011) 36 VR 1 in respect of a complaint under the Equal Opportunity Act 1995 (Vic), where his Honour concluded at [110], in respect of an applicant with the disability of bipolar disorder:
… the correct interpretation of the provisions is that the proper comparator in the present case is a worker with a different disability to the particular disability which the complainant has, who (like the complainant) is fit, willing and able to return to graduated work and who is otherwise in the same or similar circumstances.
202 The comparator in this case does however entail circumstances where the employee requires a graduated return to work. Once this comparator is identified it is plain from the evidence that Journey Lawyers did not treat Mr Tropoulos less favourably than a person without his disability would be treated in circumstances that were not materially different.
203 First, Mr Tropoulos was unable to identify any examples of more favourable treatment to other employees of Journey Lawyers – rather he simply said he believed he had been “singled out”. I note for example the following excerpt from the transcript:
MR MORRIS: When this pleading was delivered, did you believe the allegation to be true, that the firm would have provided other employees with a graduated return to work program?---Yes.
And what was the basis for that belief?---Belief.
Yes. What was the basis for it?---Belief.
Just imagination?---No, belief.
Belief must be based on reason?---Well, it’s - - -
What are your reasons?---Well, on reason, but not imagination.
Okay. Well, what are the reasons for thinking that they would have done it for someone else but not for you?---Well, I know they were very scared of female employees. They did everything .....
So you’re saying now that there were some female employees who were allowed to return to work on half days?---No, I’m saying that they would – that they would have made adjustments and assisted.
Are you serious? Are you seriously suggesting that this was a get Steve Tropoulos - - -?---No, I’m not saying that.
- - - exercise?---I’m not saying that. I’m saying that they – I – they – I think they would have helped other people return to work. I think the point here - - -
But don’t you agree that the firm went out of their way to assist you both on the first return to work, although that only lasted for one day, and the second return to work, and you were extremely grateful for everything they did to try and help you?---I was grateful. I said that because I was scared of losing my job. I was very ashamed of being depressed, sir.
Do you accept that they went out of their way to help you?---They helped.
They did everything that could reasonably be asked of them - - -?---No.
- - - to help?--- Not everything, no.
You’ve got no basis at all, have you? No basis whatsoever for thinking that they would have treated another employee better than you?---I think they would have treated another employee better.
Which one?---All of them.
All of them? All apart from you? So it was a get Steve Tropoulos exercise, was it?---Possibly.
Sorry?---Possibly.
Possibly. And what do you think the motive would have been for that?---I don’t know. A letter on 24 February demoting me.
Yes. No, we will come to that. We will come to that. Just focusing on this for a moment. What makes you think that you were singled out as the one that would be treated badly?---Because I was depressed.
I see. Do you think they’ve got an aversion about depression?---Yes, I do.
You do?---We’re here.
No, we’re here because you’ve sued?---Are we?
Yes. Do you have some trouble understanding that? That you’re the one that commenced these proceedings?---I know I’m the one that commenced these proceedings.
Yes. All right. Now going back to what you allege to be my client’s discrimination, can you offer to the court any rational explanation for thinking that the treatment you received was worse than the treatment that any other employee of Journey would have received in this - - -?---No, I can’t.
You can’t. So it is just imagination, is it?---I didn’t say that.
Well, if you can’t offer any rational explanation for it, where does it come from? What does that gesture mean?---What gesture?
The gesture you made when I asked you that question. Do you have an answer for it?---I don’t have an answer. I’m just listening.
Well, your function here is to answer my questions. Not just to listen to them?---But you weren’t asking a question.
Yes, I did. If you don’t have a rational basis for that belief, why isn’t it just imagination?---I guess it could be imagination.
Well, you agree you cannot give any rational basis for thinking that you were singled out for your treatment?---I have my reasons.
You have your reasons. Okay. Well, what are they?---I’ve told you. I think that they would have assisted other people.
No, you’ve said that they would have assisted every other member of staff except from you?---It’s a gut feeling.
A gut feeling. And what’s that based on?---Imagination.
Okay.
(Transcript pp 125-127)
204 Second, and more particularly, Mr Tropoulos did not identify any instances of employees of Journey Lawyers who were treated more favourably by Journey Lawyers in circumstances that were not materially different. No employees were, for example, identified, who had worked half-days for the firm under any circumstances – at best Mr Tropoulos said that “there are people that work part-time” (transcript p 143 ln 6), and he thought “all areas could be part-time” (transcript p 152 lln 1-2). He also conceded that the manner in which courts and tribunals listed matters, and the duration of some litigation, limited the scope for listing matters on a date and at a time which was suitable to a part-time or fractional employee (transcript p153 lln 36-47).
205 Third, no positive case was put to Mr Galvin of Journey Lawyers’ treatment of a person without the disability to support a contention that Mr Tropoulos was, in circumstances that were not materially different, treated less favourably.
206 In my view, Mr Tropoulos’ claim that Journey Lawyers discriminated against him within the meaning of s 5(2) of the DD Act by failing to allow him to work half-days five days per week on his return to work is not substantiated.
Return to work arrangements – whether reasonable adjustment
207 Mr Tropoulos makes numerous complaints concerning the arrangements for his return to work.
208 There is no doubt that failure to make reasonable adjustments by way of an appropriate return to work program to assist an employee return to pre-injury duties can constitute discrimination within the meaning of s 5 of the DD Act. In Watts for example, Mortimer J set out such possible adjustments at [229]:
…In my opinion, matters such as limited working hours which gradually increased, alterations to supervision arrangements, modifications to face to face meeting requirements, amelioration of deadlines being too tight, changes in the kind of work being performed, minimising conflict situations, avoiding the need to lead teams, where all those matters are envisaged as necessary for a limited period of time of approximately three months, are adjustments which could have been made for Ms Watts without imposing unjustifiable hardship on Australia Post.
209 It is convenient to deal with these issues raised by Mr Tropoulos in the manner he pleads them in the amended statement of claim.
Instructing Counsel on his first day back
210 Mr Tropoulos complains that Journey Lawyers discriminated against him by requiring him to instruct Mrs Galvin in either the Federal Circuit Court or the Family Court, on his first day back during the second return to work on or about 19 October 2015, when he was unfamiliar with the case in question (amended statement of claim [33](a), [34](a)). He contended that this did not constitute a reasonable adjustment in accordance with the DD Act. More particularly, this was because:
it did not accord with the advice given by Dr Geffen through Mr Tropoulos to Journey Lawyers that he should only work a few hours five days per week;
a person who suffered an injury being a workplace injury would not be required to instruct for a full day in court;
this differential treatment was because of Mr Tropoulos’ disability; and
it was irrelevant that Mr Galvin thought he was doing the right thing and endeavoured to accommodate Mr Tropoulos.
211 During cross-examination, Mr Tropoulos gave evidence in respect of this issue including:
he would not expect to instruct Counsel in court on his first day back to work because he had been away and would not know anything about the case (transcript p 131 lln 17-18);
he was unable to comment whether Mrs Galvin was “on top of” the case or not (transcript p 131 lln 40-41);
he was concerned because he could not take breaks frequently during the relevant hearing with Mrs Galvin, as suggested by his doctor (transcript p 132 lln 3-5);
he was expected to take vigorous notes and be concentrating for an extended length of time on his first day back (transcript p 132 lln 21-24); and
instructing Counsel is not easy (transcript p 132 ln 32).
212 Mr Galvin gave evidence that:
this direction to Mr Tropoulos resulted from a conscious decision to give Mr Tropoulos something that was reasonably low stress to assist him to get back to work (transcript p 278 lln 1-4);
Mrs Galvin was well briefed in respect of the relevant proceedings (transcript p 279 lln 42-43; p 280 ln 3; p281 ln 8);
in those circumstances Mr Tropoulos was present in Court in more of an administrative role than an active legal role (transcript p 280 lln 2-3; p 281 lln 14-25);
Mr Tropoulos was not expected to answer any questions from the client in respect of the proceedings (transcript p 280 lln 7-8);
Mr Tropoulos was an experienced lawyer, and would have been able to quickly understand the issues in question because the relevant principles were fairly basic (transcript p 280 lln 13-22);
whether a solicitor in a Family Court matter should be familiar with the affidavit material before the Court depended on the nature of the case, but that when instructing a barrister who is well across the case it is not as important (transcript pp 280-281); and
Journey Lawyers would often send a clerk rather than a solicitor to instruct in cases where the barrister was well-briefed although the protocol was that the firm would send a solicitor (transcript p 281 lln 19-25).
213 In summary I am not satisfied that, in requiring Mr Tropoulos to act as instructing solicitor on or about 19 October 2015, Journey Lawyers had failed to make reasonable adjustments for him.
214 It may be that Mr Tropoulos felt uncomfortable being required to instruct Mrs Galvin on his first day back to work, and that this discomfort flowed from a lack of confidence caused by disability. However to the extent that Journey Lawyers was required to make “reasonable adjustments” for Mr Tropoulos’ disability, I am satisfied that, in asking him to instruct Mrs Galvin on his first day, this was itself a “reasonable adjustment” within the meaning of s 5(2) of the DD Act. I note again that “reasonable adjustment” connotes necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden on the disabled person. I am satisfied that little was required of Mr Tropoulos in instructing Mrs Galvin other than to take notes and, as Mr Galvin stated, act in an administrative role. Mr Tropoulos was a very experienced solicitor, and was a Senior Associate with the firm, with in-depth knowledge of family law principles even if not the particular case in which Mrs Galvin was instructed. He knew Mrs Galvin, and in my view could have expected that she would have been fully prepared for the matter in respect of which she had been briefed.
215 I do not accept that Mr Tropoulos would have anticipated any questions from Mrs Galvin in respect of the matter he was asked to instruct her in. Mrs Galvin is married to Mr Galvin, who is the principal of Journey Lawyers, and although Mrs Galvin did not give evidence in the trial I consider it extremely likely in view of Mr Tropoulos’ seniority in the firm that Mr Galvin would have told Mrs Galvin of Mr Tropoulos’ health issues. In such circumstances it is unlikely that Mr Tropoulos would have expected any questions from Mrs Galvin concerning the case.
216 Indeed, Mr Tropoulos gave no evidence that Mrs Galvin asked him any questions in relation to the case, or that he experienced difficulties instructing her on that day.
217 To that extent I reject Mr Tropoulos’ claim that, in being required to carry out the simple – in the circumstances of this case – task of briefing Mrs Galvin, he was required to carry out work as if he was not subject to a disability.
218 I am also not satisfied that Mr Tropoulos would have been unable to take regular breaks if he had required them from the mere fact that he was instructing Mrs Galvin in Court. As was put to him during cross-examination, trial hours ordinarily range from approximately 10.00 am to 1.00 pm and approximately 2.00 pm to 4.30 pm, depending on relevant circumstances and the requirements of the trial Judge. It is not clear what Mr Tropoulos meant by his requirement for “regular breaks” on his return to work; however, court hours do not as a general rule require lawyers to be present the entirety of a working day at court, and the hours I have just set out accommodate breaks before and after court as well as during the middle of the day. Further, in circumstances where Mr Tropoulos was acting in an administrative role I am not persuaded he could not have left the courtroom for short periods of time for required breaks while Mrs Galvin remained.
219 To the extent that it is clear Journey Lawyers endeavoured to provide an “easy” first day back to work for Mr Tropoulos, I do not accept that, in requiring Mr Tropoulos to undertake the task of instructing Mrs Galvin, he was being treated less favourably than any other employee in materially similar circumstances.
Lack of briefings of Mr Tropoulos by Journey Lawyers on his return to work
220 Mr Tropoulos complained that Journey Lawyers had discriminated against him on his return to work by failing to provide appropriate briefings including in respect of client files and recent administrative or staffing changes and failing to transfer his previous clients back to him (statement of claim [33](e), [33](f), [34](e), [34](f)).
221 In respect of Mr Tropoulos’ concerns regarding the absence of a briefing of him by Journey Lawyers on his return to work, he gave the following evidence:
Okay. And again in paragraph D you claim that Journey discriminated against you by failing to provide any information about administrative or staffing changes which had occurred during your absence. I suggest to you that, again, that is not and never was a regular part of office practice at Journey Family Lawyers?---That’s fine. It doesn’t really bother me.
No, what’s the answer? I don’t care whether you regard it as fine or not. Do you accept that that was not part of the office practice?---I don’t know what the office practice is for someone who gets very sick and then comes back from work – from being sick.
Do you know of any situation where any employee was ever provided with such a briefing?---No.
Do you know of any situation where any employee was given a briefing of the kind mentioned in paragraph C?---Not that I can recall. No one was away for that long.
(Transcript p 122)
222 Later he said:
Next allegation, 34(e) is, again, this business about receiving a briefing about client files. And I think you’ve already agreed that, to your knowledge, that just didn’t go on at Journey Family Lawyers. That’s correct, isn’t it?---I don’t know if it didn’t go on, but I had been away for a while. I would have expected a briefing to know what’s going on. Yes.
Did you ask for one?---Yes.
Who did you ask?---I can’t remember, but I’ve asked someone.
You can’t remember who you asked, but you asked someone; is that right?---I may have sent an email to Brian and Julie. I can’t remember.
But you want to allege in this case, in the case presently before the court, that not giving you a briefing was treating you differently from every other member of the staff?---Well, it was, given that there was no discussion at all. You know, it was like I was never away. It was very strange.
I’m not asking whether it was very strange. I’m asking whether you have any basis - - -?---I’m just telling you that it was very strange.
- - - for saying that you were treated less favourably than other staff members?---Well, I think other staff members would at least have had a nice conversation when they got back from being ill and would have told them what has been happening in the firm and what has been happening with cases.
A nice conversation. Is that your complaint?---Look, we’ve been through it before. I don’t want to argue with you. Okay. You’ve got your answer before.
And you stand by the answer you gave before in relation to 34(f) as well about briefings, information about administration or staffing?---Yes.
(Transcript pp 136-137)
223 I am not persuaded that the absence of a briefing on administrative and staffing issues to Mr Tropoulos on his return constituted a failure to make or propose to make a reasonable adjustment. I have formed this view because:
Mr Tropoulos has not substantiated a case demonstrating why the absence of such a briefing constituted a failure to make a reasonable adjustment (other than speculation by him that it was a general “office practice” for this to occur when someone who was absent for an extended period of time returned to work (transcript p 122 lln 15-17);
Mr Tropoulos seemingly did not press this aspect of his claim (transcript p 122 lln 11-12);
given that Mr Tropoulos was in contact with both Mr Galvin and Ms Hawley during his period of absence from the office, I consider it likely that either of them would have mentioned to him any significant changes to administrative and staffing issues;
I note Mr Galvin’s evidence that much communication within the firm was by email, and that accordingly any major administrative or staffing changes would have been announced by email to all members of the firm; and
perhaps most importantly – Mr Tropoulos has not identified any administrative and/or staffing issues which required briefing of him on his return to the office. To that extent it is difficult to see why there was any need to brief him on such issues.
224 Further, there is no evidence before me that, in failing to so brief him, Mr Tropoulos was treated less favourably than Journey Lawyers would treat a person without Mr Tropoulos’ disability in circumstances that were not materially different. At best Mr Tropoulos surmised that other staff members would have had a “nice conversation” with – presumably – Mr Galvin or Ms Hawley.
Reallocation of his clients to other lawyers and allocation of legal aid clients to him
225 Mr Tropoulos claimed that reasonable adjustments were not made in respect of him because clients on whose files he worked prior to his absence were allocated to other lawyers and not reallocated to him on his return to work, and further he was allocated legal aid clients (amended statement of claim [26](a), [26](b), [27](a), [27](b)).
226 In respect of the transfer of Mr Tropoulos’ clients to other lawyers during his absence and leaving those clients with those lawyers. I note in particular the following evidence of Mr Galvin:
Yes, thank you. So let me get this right, Mr Galvin. Are you saying that, firstly, those carryover files that he had from when he was previously working at Journey – that’s prior to his going off in August 2015 – were these files that the clients had asked for him - - -?---I – I - - -
- - - to work on?---I can’t say definitively either way, but there were a number of files that were – he had carriage of when he went off in August that did come back. The clients were ..... his clients when they came back to him.
Well, if that’s the case, you didn’t have a problem with swapping lawyers?---We – we – we – we tended to have the discussion with the clients explain what was happening, and they – if the client had a preference for their existing lawyer, they – they would stay with their existing lawyer. If they expressed an interest to go back to the previous lawyer, they expressed that interest, and we would accept their – their preference.
And did you do that in every file that was outstanding when Mr Tropoulos went first off in – on 10 August?---I can’t say there was any formal process of doing that.
So you don’t know whether or not somebody sat down with the client and said, “Look, Mr Tropoulos is coming back. Do you want to go back to him”?---Well, there’s a problem with that because on his first return to work we actually had quite – because over time clients’ matters finished – typically we like to say that we – a client’s matter finishes over six to eight months. Well, after three months, a significant number of matters had just finished. But on his first return to work, we foreshadowed with a number of clients that he was coming back to work and that the files – gave them the choice of swapping back to Mr Tropoulos. Unfortunately, he came back, stayed a day, and then we were left in the unenviable position of trying to explain to the clients that, no, Mr Tropoulos wasn’t coming back and we couldn’t explain anything behind that. So when he came back for the second return to work exercise, we held back that practice until we saw that he was on the ground and seemed to be coping.
Right. So that when he came back the second time again there were files that he had previously worked on - - -?---Yes.
- - - that were given to him. All right. Well, with respect, Mr Galvin, that makes sense, doesn’t it, that you would do that because of – for two reasons, firstly, the ongoing relationship with the client and, secondly, the experience that Mr Tropoulos would have had with the file?---Yes.
Correct?---That – well, there’s the second reason we – another reason why we were a bit reluctant the second time round to – why I advised the clients in advance was that when he came back the first time, he didn’t have any understanding or information as to his – his health. It was only after his first aborted return to work that we understood that he – he wasn’t as healthy as we assumed he was. So when he came back the second time, we – we held back till we saw how he went.
But you did have a certificate from Dr Geffen on – for the first occasion?---Yes.
Yes, and so you – Dr Geffen had certified him for this first occasion that he was fit to come back to work; correct?---That’s correct.
Yes?---But the trouble was that didn’t eventuate. He wasn’t fit to come back to work.
Well, he didn’t remain at work and went off?---No, no, that’s correct, yes.
(Transcript pp 288-289)
227 During cross-examination, Counsel for the respondent asked Mr Tropoulos questions concerning the allocation of work to him on his return to work. Mr Tropoulos gave evidence as follows:
Anyway, I take it therefore there was no surprise when Mr Galvin told you that your files had been reallocated to other lawyers?---Yes and no. I was surprised – I was wondering whether I would get them back.
But the email didn’t say anything about getting them back or not getting them back?--- I said I was surprised, yes and no. I was wondering whether I would get any of them back.
Well, I’m just trying to understand the point you’re making here. What is your complaint of discrimination because you were told that your clients had been reallocated to other lawyers?---That’s not my complaint of discrimination.
It is. If you go on to the next paragraph 26, it says – that – the email of 2 October 2015 failed to make reasonable adjustments and by 27 it alleges that that failure to make reasonable adjustments means that the firm and Mr Galvin treated you less favourably than a person without your disability would have been treated in circumstances that were not materially different. So it is an allegation of discrimination. Do you know of any employee in the history of Journey who was away for, shall we say, six weeks, and didn’t have their files reallocated to other lawyers?---No, I don’t.
Well, where’s the discrimination?---I don’t know.
Well, this is your statement of claim. You’re making these allegations against my client. Why do you say that that is discrimination?---Because of the return to work program.
No, the complaint here is about reallocating the files. Why is that discrimination?---Because I didn’t get any of them back.
All right. Then he says that you would be instead given the legal aid clients. Well, if you didn’t have any of your own files, wouldn’t that be the ordinary thing? That you work on the legal aid files?---Well, I was surprised that the legal aid files weren’t reallocated.
(Transcript p 123)
228 While Mr Tropoulos did not specifically abandon this aspect of his claim, in light of his answers under cross-examination, the extent to which Mr Tropoulos continued to press aspects of his claim concerning his return to work program is somewhat unclear. Accordingly I make the following observations.
229 In relation to the reallocation of client files Mr Tropoulos submitted that Journey Lawyers advocated a team approach when it came to dealing with client files, as was apparent from cl 5 of Sch B of Mr Tropoulos’ contract of employment (which is annexure SET 2 to Exhibit 3(A)), that it would have been reasonable for Mr Tropoulos on his return to do work on files for clients with whom he had previously worked rather than having legal aid clients which had not been allocated to him in his past practice, and that it was inappropriate for Journey Lawyers to inform Mr Tropoulos that the previous files on which had worked had been permanently allocated to other lawyers and proposing instead that he be allocated legal aid files.
230 It may be that Mr Tropoulos would have been more comfortable working with files with which he had been familiar prior to August 2015. That does not mean, however, that it was a reasonable adjustment to return those files to him on his second return to work when:
the previous attempt to do so had been unsuccessful because of Mr Tropoulos’ relapse and return to extended leave;
it would have necessitated a further reorganisation of file allocation in the firm;
it would have necessitated an explanation to the clients of the reallocation of that work; and
Mr Tropoulos was clearly not confident in his work. That this was the case was clear from evidence of Mr Galvin, echoed by evidence of Mr Tropoulos to the effect that he was “foggy” in his mind (see generally, eg, transcript p 209 lln 42-44).
231 Indeed, there is reason to infer that requiring Mr Tropoulos to take up again his previous clients could have placed him under undue pressure, and caused him further distress, because those clients would have had expectations of him based on his past performance.
232 Much was also made of the fact that Mr Tropoulos was allocated legal aid files, however no real reason for this as a basis of complaint was advanced. I infer that the reason for complaint concerned the amount which could be billed on each file, and the corresponding reduction in his billings, however no real evidence of this was produced.
233 In summary, although there is no evidence that Journey Lawyers devised a formal return to work program for Mr Tropoulos, I am not satisfied that the absence of such a formal program constituted a failure to make reasonable adjustments for Mr Tropoulos. The efforts of Journey Lawyers to provide Mr Tropoulos with uncomplicated work on his return, provide him with time to recover, suggest that he work with other lawyers in the firm, and propose additional leave to allow him to recover if he needed it, were reasonable adjustments in the context of s 5(2) of the DD Act.
Failure to return Mr Tropoulos to his former office
234 Similar issues arise in respect of the apparent allocation of Mr Tropoulos’ office to another lawyer in his absence, and the failure to return him to that office on his return. Mr Tropoulos pleads this in [49](b) of the amended statement of claim.
235 Again, while Mr Tropoulos may have been more comfortable returning to his previous office, no real reason was advanced as to why it was a “reasonable adjustment” in the circumstances for Mr Tropoulos to be in his previous office. It is not my understanding that, on his return to work, Mr Tropoulos was provided with facilities which could be termed sub-standard. Further, the basis of Mr Tropoulos’ proposed return to work was that it would be less than full time – his preference being fractional. The overheads of a small firm are such that I consider it would be an unjustifiable hardship for Journey Lawyers to reserve an office solely for his use, or relocate a full time lawyer for Mr Tropoulos’ comfort or convenience. In this respect I also have regard to the following evidence of Mr Galvin:
Dealing with the question of premises, one of the issues in this case is in relation to Mr Tropoulos’ office, and you know the complaint is made with respect to his office being suggested it would not be available to him when he returned. You know that?---Mmm.
All right. As I understand your explanation is that you couldn’t have an office vacant, so you had to put somebody in there whilst Mr Tropoulos was away; is that correct?---No.
All right. What’s your explanation, please?---The explanation is that we had – the offices had a certain number of – perhaps, I will call A-class offices which Mr Tropoulos had one and other offices were –which were not really suitable because of, basically, airflow, air-conditioning issues, and our preference is always to use the A class offices in those particular premises. And, in fact, the reason I don’t have an office there was that I had an office there and I gave it up to another lawyer because they were there full-time and their need was greater than mine, so I allocated my own office away. And the same for Mr Tropoulos, we had a – and it wasn’t that we weren’t – in fact, he used that same office in both returns to work. It was simply that there may have been an occasion and it, in fact, did arise where we had another solicitor where we needed to put her in an office. So that’s the office we used.
And the office that would be normally used by Mr Tropoulos?---Yes, subsequently in the following year.
Yes. All right. But Mr Galvin, just work with me here. The air-conditioned offices, were they all filled by lawyers?---Yes.
Were there offices that weren’t air-conditioned that were filled by lawyers?---Sorry?
Occupied by lawyers?---Were there - - -
Air-conditioning – sorry. Offices that weren’t air-conditioned, were there ones that weren’t occupied by lawyers?---Typically, the last lawyer in got that – the unairconditioned office.
All right. So - - -?---But we tried to avoid them even being there.
Right. Yes. Of course. But in terms of Mr Tropoulos, he wasn’t the last lawyer in, was he?---He was – he was the lawyer in. We had a subsequent lawyer after that moved into that office.
Yes, but in terms of seniority, he wasn’t the last lawyer in?---When we moved into those premises, Mr Tropoulos took that particular office and he stayed there.
Right. But you told him that when he came back, you weren’t going to have him in that office; isn’t that right?---I wasn’t – I couldn’t guarantee I would have him in that office.
Right. Now, why is that? Why couldn’t you guarantee that he couldn’t have that office?---If we put another lawyer into that office, and they stayed there – and, again, we – I didn’t know whether we were talking about coming back in a month, three months, six months, a year, or two years. I had no knowledge of when Mr Tropoulos was coming back. So, in that context, I didn’t know the situation in the office arrangements at that time, so I couldn’t guarantee it. If a lawyer had been in there for a year, I would be very reluctant to move them.
Even if they were less senior than Mr Tropoulos?---Yes.
So, by putting something – sorry – by putting somebody less senior than Mr Tropoulos, and not moving them if Mr Tropoulos came back, isn’t that saying to Mr Tropoulos, “Well, you don’t rate - - -”?---No.
“ - - - the same”?---No.
Well, what does it – well, why doesn’t it say that?---In the last three months, I’ve had a similar situation in North Lakes, where we had two offices. One of the lawyers went off on maternity leave. Her office was replaced by – it was taken over by another lawyer. When she came back, the lawyer who took over kept her office, and again, she took my office, and I moved out. So it wasn’t a matter of seniority in any particular sense. And, again, that’s how we work.
But, Mr Galvin, in terms of the position of Mr Tropoulos, wasn’t it the situation that, whomever you put into the office that he normally occupied, you could have said to them, “Look, when Mr Tropoulos comes back, we’re going to be putting him in that office”?---What I’ve said in the recent case, and – I would hope that I – I would raise the issue, but I wouldn’t make it mandatory. Depending on how long the lawyer was in there, whether they move their – what they – how they’ve set it up. I would have endeavoured to get Mr Tropoulos back to his favourite room, but I couldn’t guarantee it.
But you could certainly have that conversation, couldn’t you?---I would have had the conversation about who – about sharing the offices, yes.
Well, not sharing the office. The person who was there - - -?---Sharing all the offices.
Yes, but – and the person who was occupying Mr Tropoulos’ office: you could put them on notice, “Well, don’t think this is permanent”?---That’s a possibility too.
Well, in terms of Mr Tropoulos’ seniority, isn’t that the right thing to do?---I would have endeavoured to do it, yes, but I couldn’t guarantee the outcome, because I didn’t know when the – it’s like asking me, “Where does the road finish?” I don’t know.
Mr Galvin, did you have that conversation? Did you have that conversation with the person occupying Mr Tropoulos’ office?---It was academic, because we didn’t - - -
It’s a yes or no question, Mr – answer, I should say – Mr Galvin. Did you have the conversation?---What conversation?
The conversation, “Don’t think this is permanent”?---I need to answer that in context, so it’s not a yes or no answer.
Answer it the best way you can, please?---Thank you. The lawyer who moved into that office subsequently was on notice that she was then moving out to a branch office, so it was always to be a temporary position.
All right. So when that occurred, somebody else took the office?---No, and we had moved out of those premises since.
I see.
HER HONOUR: Could I ask a question of Mr Galvin.
Mr Galvin, it sounds like people moving in and out, for various reasons – they’re going on leave, maternity leave, could be sick leave, could be moving premises – is it – and it sounds like – you used the expression before, “sharing all the offices”. Is it a relatively flat structure in - - -?---Yes. Yes, your Honour.
In Journey Lawyers, for - - -?---Yes, your Honour.
For lawyers?---Yes. The theory is that the lawyers concentrate on doing the law, and the administration is separate. And then, normally, we would have one of – a senior person keeping – giving their attention to the lawyers, in terms of law, principally, and then one person would principally run the administration.
Okay. Thank you.
(Transcript pp 290-293)
236 This evidence of Mr Galvin is plausible. From this evidence I am satisfied that even if arranging for Mr Tropoulos to return to his original office was a reasonable adjustment, and the failure to do so was because of his disability, this did not mean that he was treated less favourably than another person without the disability in circumstances that were not materially different. Mr Galvin’s evidence indicates that no lawyer in the office could lay claim to any particular office – not even Mr Galvin himself – because offices were allocated according to who was using them.
Position and salary of Senior Associate
237 At [44], [49], [50] and [51] of the amended statement of claim, Mr Tropoulos pleaded that a reasonable adjustment to him would have been to allow him to retain his substantive role of Senior Associate with Journey Lawyers, not be “demoted” to a Family Lawyer role with consequential loss of salary and benefits, not be required to develop a case load, and be permitted to return to work on the date certified by his medical specialist. At [55]-[60] Mr Tropoulos also pleaded that reasonable adjustments had not been made and that he had been treated less favourably than a person without his disability would have been treated because such a person would not have been told that their position was redundant, and that there was no such position as “Senior Associate”.
238 Further, Mr Tropoulos pleaded that Journey Lawyers reduced his salary from $120,000 to $75,000 per annum, and informed him that all new client interviews would be under the supervision of another lawyer, that all work would be supervised by Mr Galvin or his delegate, and that Mr Tropoulos would be expected to assist other lawyers. He pleaded further that all of these steps constituted a failure on the part of Journey Lawyers to make reasonable adjustments for him.
239 There is no real dispute on the part of Journey Lawyers that a number of these events had occurred, although there is some dispute about the reduction in Mr Tropoulos’ salary because it appears that Mr Tropoulos’ salary was returned to that set out in his contract of employment (that is, $100,000 per annum) rather than fixed at $75,000.
240 Prima facie, and notwithstanding that in [50] of the amended statement of claim Mr Tropoulos pleaded his case in terms of s 5(2) of the DD Act (in that it refers to the failure of Journey Lawyers to make reasonable adjustments for Mr Tropoulos in the terms and conditions of his employment) it is difficult to see how this aspect of Mr Tropoulos’ claim sits with s 5(2). The facts which Mr Tropoulos pleaded concern acts taken by Journey Lawyers, and Mr Tropoulos claimed simply that Journey Lawyers should not have performed those acts. It is unclear from his pleaded case how these acts were relevant to “reasonable adjustments” within s 5(2). In terms of s 5 of the DD Act, while Mr Tropoulos did not plead s 5(1) specifically, his case in [44], [49], [50] and [51] seems more clearly referable to being instances of alleged direct discrimination within s 5(1) rather than s 5(2).
241 Irrespective of whether this aspect of Mr Tropoulos’ claim is better framed by reference to ss 5(1) or 5(2), it is evident that decisions of Journey Lawyers concerning Mr Tropoulos, and pleaded by him in [49] of the amended statement of claim in respect of his change of position of Senior Associate and alteration in salary, constituted a change in his working environment to that which he had experienced prior to August 2015 (and potentially constituted a detriment within the meaning of s 15(2) of the DD Act). The key questions which arise from the pleadings are whether those decisions were reasonable adjustments and whether, in making those decisions, Journey Lawyers treated, or proposed to treat, Mr Tropoulos less favourably than the firm would treat a person without his disability in circumstances that were not materially different.
242 Mr Tropoulos submitted that he was treated less favourably, because the failure to acknowledge Mr Tropoulos’ new circumstances amounted to a failure or proposed failure to make reasonable adjustments by, inter alia, maintaining his Senior Associate position, and maintaining his salary.
243 In respect of this aspect of Mr Tropoulos’ case, I make the following observations.
244 First, Mr Tropoulos specifically conceded that his disability affected his thought processes, emotions and judgment, and resulted in disturbed behaviour on his part (statement of claim [10]). In his communications with Journey Lawyers, Dr Geffen informed the firm that Mr Tropoulos’ mental health was suffering as a result of his disability. In such circumstances, Mr Tropoulos has not substantiated a case that Journey Lawyers failed to make a reasonable adjustment in monitoring Mr Tropoulos’ behaviour in the workplace or requiring him to work with other lawyers, particularly given the evidence of Ms Manderson that family law clients can themselves have emotional needs and a relationship of dependency with their family lawyer. Certainly Mr Tropoulos has not substantiated a case of less favourable treatment to hypothetical comparators.
245 Second, both Mr Galvin and Ms Hawley anticipated being on leave in early 2016, and Mr Tropoulos had twice unsuccessfully attempted to return to work. On the evidence, Journey Lawyers is a small firm, and Mr Galvin and Ms Hawley constituted the management team of Journey Lawyers. It may have suited Mr Tropoulos to return to work before May 2016, but given the size of Journey Lawyers and Mr Tropoulos’ previous unsuccessful attempts to return to work, I am not satisfied that, in asking Mr Tropoulos to return to work in May 2016 when Mr Galvin and Ms Hawley would have returned to the office, Journey Lawyers was treating Mr Tropoulos less favourably than other employees would have been treated. I also note that in its lawyers’ letter of 18 March 2016, Journey Lawyers invited Mr Tropoulos to return to work the following Monday on 21 March 2016, which was prior to the departure of Mr Galvin and Ms Hawley on leave, to allow them to assist Mr Tropoulos in his return to work and to supervise and monitor his performance. Again, given Mr Tropoulos’ concession that his disability affected his thought processes and resulted in disturbed behaviour, it was neither unexpected nor, in my view unreasonable, that Journey Lawyers would have wanted to ensure his performance at work was supervised and monitored until he was “back on his feet”.
246 Third, in the letter from Bennett & Philp dated 18 March 2016, Journey Lawyers required that, before he could return to work, Mr Tropoulos provide Journey Lawyers with a medical certificate that he was fit to discharge his duties and responsibilities under his employment contract. Mr Galvin gave evidence that Journey Lawyers required a certificate to say that Mr Tropoulos was fit to return to work, and that the refusal to give such a certificate was indicative that Mr Tropoulos was not fit to come back to work (transcript p 297 lln 13-21).
247 Mr Tropoulos pleaded that, in advising Mr Tropoulos that his return to work was conditional on his provision of a medical clearance certifying his fitness to return to work, Journey Lawyers failed to make reasonable adjustments for Mr Tropoulos in terms of s 5(2) of the DD Act.
248 Further, Mr Tropoulos submitted that the letter from Mr Tropoulos’ lawyer dated 15 March 2016 identified an email from Dr Geffen dated 8 December 2015 as certifying that Mr Tropoulos was fit to return to work on 4 March 2016, however it had been disregarded by Journey Lawyers.
249 In his email of 8 December 2015, Dr Geffen stated
… However I agree he is currently unfit to work and should take at least six weeks off work (not to return until 20/1/2016), it is possible that this may need to be extended by a further six weeks (that is 12 weeks in total). Thus one could plan for 12 weeks (until 4/3/2016) and an early return, or six weeks and an update a week or so prior to 20/1/2016.
250 In my view this communication does not constitute an unequivocal certification by Dr Geffen that Mr Tropoulos would be fit to return to work on 4 March 2016. Dr Geffen’s opinion as expressed in this email appeared rather to be a combination of speculation and optimism that Mr Tropoulos would be fit to return to work either in January 2016, or possibly March 2016 (and subsequently Dr Geffen held the view that Mr Tropoulos was not fit to return to work on 4 March 2016). It was open to Journey Lawyers to treat the prediction of Dr Geffen concerning Mr Tropoulos’ future health, expressed as at 8 December 2015 but referable to several months ahead, as, at best, a qualified opinion, particularly in light of the history of Mr Tropoulos endeavouring to return to work in the previous months (viz: two unsuccessful attempts of Mr Tropoulos to return to work following similar communications from Dr Geffen).
251 Indeed Dr Geffen’s evidence was that the only certificate he issued in respect of Mr Tropoulos was to the effect that, if there was a suitable agreed to return to work program, Mr Tropoulos could return to work (transcript p 56 lln 5-23).
252 The duties and responsibilities of Mr Tropoulos as identified by his Employment Contract dated 24 February 2012 were defined in cl 1 of the contract as follows:
1.1 You will be employed as Senior Family Lawyer reporting to Lynette Galvin. Your duties and responsibilities will include those described in your Role Description attached to this Contract, and without limiting the generality of the foregoing, such other duties as the employer may allocate from time to time provided always that such duties shall be reasonable, lawful and in accordance with accepted ethical standards.
253 Schedule A to the Contract set out the “Position Description” of Mr Tropoulos’ role, as follows:
1. General Description
To ensure that clients receive prompt, courteous and friendly legal service and that legal work is completed in an accurate and timely manner, and in accordance with clients’ and employer’s best interests at all times and in a manner commensurate with the Journey philosophy.
2. Responsibilities/Objectives
Understand how we work with and build relationships with clients
Adhere to our client service standards
Professionally handle client queries
Be familiar with the firm’s areas of operations
Maintain accurate and detailed client notes and/or input such information directly into your computer
Conduct our firm’s business complying at all times with ethical practices
Adhere to the general Workplace Health and Safety Procedures
Professionally handle any client complaints you may receive
3. Reporting Relationships
Direct report to the Director
Secondary reports to the Senior Associate or Senior Lawyers of each office.
4. Skills/Knowledge/Experience/Attributes
Qualifications
Bachelor of Law
Intermediate Microsoft Office skills
Skills
Fee earners must have demonstrated skills in Family Law. Skills include knowledge of the law, ability to manage clients, ability to appear and represent journey in court, academic and other qualifications.
Well developed written and verbal communication skills
Good interpersonal skills.
Experience
A minimum of 3 years in a similar role
Personal Attributes
Strong work ethic
5. Job Analysis
Care of clients of the firm, preparing their work, giving advice and utilising office systems including:
Attending on clients
Doing client work, in accordance with instructions received in the areas of
Family Law – married and unmarried couples
Associated areas of law
In the course of work for clients:-
o Adopt a settlement focus, seeking the best reasonable outcome as soon as possible
o Treat clients with compassion and care and listen to them
o Treat other practitioners in a professional manner
o Use email when possible
o Keep the client informed
o Bill the client regularly, ideally weekly
o Stop work if clients do not pay as arranged and liaise with employer before proceeding
o Document advice, where practicable by letter
o Do not accept instructions in area where you are out of your depth without consultation with the employer
o Ensure any letter sent will not cause embarrassment to the firm or to the employee of produced to a Court and/or the Queensland Law Society (Inc)
o If seeking assistance from counsel for which the client will have to pay, obtain a quote from counsel and he client’s instructions, in writing, before briefing counsel.
254 That, at material times, Mr Tropoulos had a disability which affected his work performance is not in dispute. However Mr Galvin, as principal of Journey Lawyers, was subject to obligations under the Legal Profession Act 2007 (Qld) (LPA), including obligations relating to misconduct under s 118, and in particular the obligation to take reasonable steps to ensure that lawyers employed by the practice do not engage in unsatisfactory professional conduct or professional misconduct (s 118(2) of the LPA). “Unsatisfactory professional conduct” is defined by s 418 of the LPA to include:
…conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
255 It is trite to observe that legal practitioners who fail to perform legal services with reasonable care and skill can be liable to clients in tort for negligence, or for breach of contract (see, eg, Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1, and the detailed discussion in Corones S, Stobbs N and Thomas M, Professional Responsibility and Legal Ethics in Queensland (2nd ed, Lawbook, 2014) at 188 et seq).
256 In circumstances where Mr Tropoulos had insisted that he return to the same position as he had held prior to August 2015, including the same clients and duties albeit on a graduated basis, but where Mr Tropoulos had twice unsuccessfully attempted to return to work in a meaningful fashion, had been unable to maintain regular working hours, and had displayed a lack of confidence in the discharge of his duties under his contract of employment, I do not consider that requiring a medical certificate that he was actually fit to return to work and perform the work of an Australian legal practitioner for the purposes of the LPA constituted a failure on the part of Journey Lawyers to make a reasonable adjustment for him. Indeed, I note that the letter from Susan Moriarty & Associates dated 15 March 2017 stated that Mr Tropoulos “intends to return to work once medically certified fit for that purpose”, but Mr Tropoulos conceded that this never occurred (transcript p 191 lln 1-4).
257 Further, there is no evidence before the Court that in requesting this certificate Journey Lawyers treated Mr Tropoulos less favourably than a person without his disability would have been treated in circumstances that were not materially different.
258 Fourth, Mr Tropoulos conceded that the role and title of Senior Associate implies that a lawyer is a senior experienced legal practitioner and that a law firm cannot hold out a person as Senior Associate unless that person is working to that standard (transcript p 142 lln 38-43). Mr Tropoulos gave evidence that during his first and second returns to work he was working to the standard of Senior Associate by assisting other staff, although he did not have a file load (transcript pp 142-143). Other than this, however, Mr Tropoulos was unable to substantiate a case of less favourable treatment within the meaning of s 5 of the DD Act. In particular I note the following evidence:
And you will see that leads on, in paragraph 44 and 45, to an allegation that my clients treated you less favourably than a person without your disability would have been treated in circumstances that were not materially different in that such a person: (a) would not lose his substantive role and be demoted to a family lawyer role with consequential loss of salary and benefits. Now, you can’t identify any instance involving another employee of the firm in comparable circumstances?---No, I can’t.
Likewise, with continuing to have the role and title of senior associate, you can’t identify any situation at the firm involving comparable circumstances?---No.
And likewise, in relation to paragraph (c), you can’t identify any incident at the firm relating to the employee being able to return on and from the date that the employee or the employee’s medical practitioner recommends?---I can’t talk for other people in the office.
No. So if you can’t talk for other people in the office, how do you make the allegation that the treatment you received was less favourable than a person without your ability would have been treated in circumstances that were not materially different? How do you make that allegation if you can’t speak for other people in the office?---Well, you wouldn’t treat – I’m saying that they wouldn’t treat people who hadn’t had the illness the same.
Your allegation is that, if other people were in similar circumstances, circumstances that were not materially different, they would have been treated better. How do you support that allegation?---I don’t know.
Are you aware of any facts, circumstances or material which would have permitted a solicitor in the position of Ms Moriarty to certify to the court that there is a proper basis for making that allegation?---No.
No?---I don’t know.
You don’t know. Well, if you don’t know, no one else does, do they? Ms Moriarty didn’t have any other sources of information from inside Journey Family Lawyers that would allow her to make that allegation?---No, I don’t think so.
No. Why are we here, Mr Tropoulos? You can’t identify a single instance where you were treated less well, less favourably, than other people as a result of your disability. What – why are we here? Is it all your gut feeling that this was - - -?---No, it’s not my gut feeling and my understanding of the law is that there are compactors and there are – you know the other laws that, even though they’re not in contracts, they still have to be followed. I don’t understand. I’ve had enough. Just please stop.
(Transcript pp 149-150)
259 Later in response to questions concerning the financial effect on Journey Lawyers, Mr Tropoulos gave the following evidence:
And they had done so in circumstances which were financially detrimental to the firm?---Well, I – it could be financially detrimental for a senior associate to go on maternity leave for six months or 12 months, and have no client list or client file load; would they be demoted and reduced in salary?
No, no, no, no. That wasn’t my question. The attempts made to bring you back into the firm were at the cost of the firm?---I did as much as I could with what was available to do at the time.
Yes, and you didn’t even cover overheads?---That’s right, but I was taken – my file load was taken away, and it wasn’t busy at the time.
(Transcript p 193 lln 13-23)
260 While in this evidence Mr Tropoulos identified a possible comparator in the form of a Senior Associate going on maternity leave and returning at the same level, there was no evidence that Journey Lawyers’ senior staff had been, or could be, retained at the same level of seniority after prolonged periods of absence.
261 Mr Galvin gave the following evidence in his affidavit dated 10 October 2017:
27. During the months September 2015 to December 2015 the Applicant billed a total of $12,840 and collected a total of $11,607.07 For the same period the previous year, 2014, he billed a total of $148,052 and collected $139,883.18 In effect, the Applicant underperformed to the extent of $135,212 over that four month period when compared with the previous year.
…
28. It was clear that his performance was significantly affected and the figures indicated he was performing at one tenth of his previous capacity. From a financial perspective, his lack of performance was severely affecting Journey financially.
29. At the same time, Journey was still covering the Applicant's wages and the other fixed overheads relating to providing the support necessary to a full time lawyer such as rent, support staff and other outlays. In the financial year 2015/2016, the expenses of Journey including wages was $1,894,684. The number of lawyers can vary but at the time there were nominally nine lawyers. Based on our overheads, each lawyer costs on average $210,520 per annum. After adjusting for their salaries, the average cost of support for lawyers each year is between $80,000 and $100,000 per annum. Therefore, over a four month period the cost of support for lawyers is between $25,000 and $35,000. This is in addition to their wages.
30. As a firm we adopt a “three times rule” for pay and performance. This means a lawyer is expected to bring in three times their salary. In the Applicant's case, based on his salary of $125,000, he should have brought in $375,000 and for the period September to December 2015, he would have been expected to bring in one third of $125,000, so on a 5 day fortnight which he was effectively working, he should have brought in $20,000 at least. He brought in only $11,607.00.
31 . During the period 19 October 2015 to 4 December 2015, we paid the Applicant:
Gross wages $7,582
Annual Leave $1,121
Personal Leave (sick leave) $ 528
Superannuation $ 877
TOTAL $10,108
This information is from the company’s MYOB pay records.
32. Strictly speaking, in accordance with his employment contract, this constituted reduced billable hours. In accordance with section 7.4 it allowed me to reduce his salary because of that consistent failure. The Applicant did not discuss with me his failure to achieve those times and I did not raise the issue with him as I was primarily concerned for him to return to full health and productivity and did not want to add any pressure on him.
33. However, in the long term, I could not continue to suffer detriment at my office once it became apparent that the second attempted return to work had failed.
34. Apart from the financial perspective, I knew I could not continue to hold the Applicant out as a senior associate as he could not function at that level.
262 Subsequently in the same affidavit Mr Galvin deposed:
44. During the second return to work it became apparent to me that in spite off [sic] the Applicant having full leeway in returning to work, attending as and when he chose on the days that he chose, he was unable to assume the duties of senior associate at that time. Because of my professional obligations and the obligations to clients, I could not hold him out to be a senior associate if he could not fulfil that role.
45. Further, I had an obligation to the staff to keep that firm viable and to continue to pay the Applicant at the rate that I had been paying him for very little return was not possible.
263 Mr Galvin gave further evidence as follows:
53. By letter dated 15 March 2016, the Applicants lawyers raised a number of issues.
(A) The Applicant's role as senior associate.
That correspondence described a "demotion". My correspondence of 24 February 2016 declared that before the Applicant could re-assume that role, he would need to demonstrate an ability to carry out the role.
I fully expected to reinstate the Applicant to the position of senior associate once I was satisfied that his skills had been renewed. However, I was not 100% certain he could fulfil the role as he said, especially as he had already had two failed attempts at return to work. I had to be cautious and assess his ability to work before I could allow him to represent Journey as the senior associate again.
(B) Reduction in pay.
The reduction in pay suggested was a reflection as to what his pay should be under the terms of his employment contract which was based on his performance. Nevertheless, I immediately advised the lawyers that I would return his pay to the amount stated in his contract of employment, namely $100,00 [sic] per annum.
264 I do not accept the submission of Journey Lawyers that there was never, in substance, a position of “Senior Associate” at Journey Lawyers. Mr Tropoulos had been referred to as a Senior Associate at the firm, and he had been paid a salary higher than his contract of employment had provided for a senior family lawyer, suggesting that his salary of $120,000 was commensurate with that paid to a Senior Associate at the firm. It is difficult to see how the decision that he should return to the firm on the basis of being a family lawyer rather than a Senior Associate could be considered to be a “reasonable adjustment” for Mr Tropoulos within the meaning of s 5(2) of the DD Act, both in the sense of it being scarcely an “adjustment”, and further in that it could not be considered to be anything other than for the benefit of the firm, rather than an adjustment to Mr Tropoulos’ working conditions in light of his disability.
265 However – the immediate questions are whether retaining Mr Tropoulos at the level of Senior Associate at the salary of $120,000 (rather than declaring the position redundant as occurred) would have caused unjustifiable hardship to Journey Lawyers, such that it would not be a “reasonable adjustment”, and if it did not, whether the treatment of Mr Tropoulos was less favourable than that accorded to other employees in circumstances which were not materially different.
266 It was uncontroversial that the role of Senior Associate constituted a mentoring role, whereby the Senior Associate mentored and supervised more junior solicitors. Dr Geffen gave evidence that, in his view, Mr Tropoulos was capable of providing mentoring to more junior legal staff at all relevant times (transcript p 61 lln 1-22), and I have already noted Mr Tropoulos’ evidence that he did undertake this role during his returns to work.
267 Ultimately however, Journey Lawyers was a small law firm, with tight budgets. While it was possible for the firm to support Mr Tropoulos for the second half of 2015 as it did, and indeed I note that in March 2016 Journey Lawyers agreed to return Mr Tropoulos’ salary to that set out in his contract of employment, retaining Mr Tropoulos at the same level and at the same salary without a concomitant ability of Mr Tropoulos to bring in fees, and no real appreciation of when Mr Tropoulos would be in a position to work to the level he had previously achieved, caused a significant financial burden to the firm. It is unlikely that the unidentified extent to which Mr Tropoulos was able to add value to the operation and business of Journey Lawyers in non-billable ways could compensate for his apparent inability to perform billable work of any magnitude.
268 Further, and ultimately, there was no material before me to substantiate a finding that, in the circumstances of this case, Mr Tropoulos received less favourable treatment at Journey Lawyers than a person without his disability in circumstances that were not materially different would have received. On the contrary – such evidence as is before me suggests that Mr Tropoulos was singled out for favourable treatment for several months, in the form of retention of his position, tolerance of such hours as he could work, and payment of his salary at the rate he had had prior to August 2015, until such support became financially unviable for the firm. Further, as is evident from the letter of 28 February 2014 annexed to Mr Galvin’s affidavit of 30 May 2017, the firm had previously reduced the salaries of employees due to a severe downturn in income at that time and in line with the reduction in productivity of employees including Mr Tropoulos. In that letter of 28 February 2014 Journey Lawyers wrote, inter alia:
As you are aware, your salary is performance based. This means in the past, your salary has increased when your performance and productivity increased. We are now in a position where your productivity has reduced and has been reduced for some time.
The downturn is despite spending increasing amounts on marketing. The reasons why the productivity has reduced are not particularly relevant as the issue is the viability of the Firm to continue to trade, and employ staff. If the Firm’s expenses are not reduced in the near future, we will be obliged to take more drastic steps for the business to continue…
…
Given that your current salary is significantly over and above your performance, we are obliged to reduce your salary…
269 There was no evidence before me that, at times material to this proceeding, Journey Lawyers had experienced a downturn in business such as to warrant the reduction in the salaries of employees, however this does not derogate from the evidence that the firm is relatively small with tight budgets. As the letter of 28 February 2014 made clear, the firm had previously reduced salaries of employees, including Mr Tropoulos, to reflect their reduced productivity. This conduct was consistent with the firm’s treatment of Mr Tropoulos after August 2015. It could not be said that their treatment of Mr Tropoulos at times material to this proceeding was less favourable than of other employees, or indeed of Mr Tropoulos himself, in previous times.
270 It may be that Journey Lawyers could have implemented a more structured return to work program for Mr Tropoulos. The fact was, however, that the firm was small, without the resources of large organisations with human resources departments, and overall had limited resources to cope with the challenges posed by Mr Tropoulos’ disability. Notwithstanding this, I am satisfied that Journey Lawyers made reasonable adjustments for Mr Tropoulos’ disability, and did not treat him less favourably than a person without his disability in circumstances that were not materially different. Indeed it is clear that for several months from August to December 2015 (until the end of the second return to work) Journey Lawyers accepted without demur Mr Tropoulos’ work patterns, such that Mr Tropoulos was able to work, and, to use the words of Bennett & Philp in their letter of 18 March 2016, Journey Lawyers “bent over backwards” to endeavour to accommodate Mr Tropoulos and facilitate his return to work.
271 That Mr Tropoulos’ returns to work were unsuccessful was not, in any way, the fault of Journey Lawyers.
Engaging in mediation with Mr Tropoulos – whether reasonable adjustment
272 At [64]-[68] of the amended statement of claim, Mr Tropoulos pleaded that on 20 July 2016 his solicitors formally wrote on his behalf to Journey Lawyers requesting a mediation under cl 25 of his employment contract, that by letter of 27 July 2016 Mr Galvin refused to engage in mediation, and that by doing so Journey Lawyers failed to make reasonable adjustments for Mr Tropoulos by subjecting him to detriment or alternatively by denying him the benefits associated with his employment.
273 Clause 25 of Mr Tropoulos’ employment contract provided as follows:
25. DISPUTE RESOLUTION
25.1 The parties shall endeavour to maintain the most harmonious relationships possible and resolve any disputes at the earliest possible time.
25.2 The terms of any dispute between the parties shall be notified in writing by the party who claims that there is a dispute and such notice shall be served by that party on the other.
25.3 Such dispute shall be resolved:
(a) Firstly by negotiation between the parties and the parties shall meet to resolve such dispute within two business days of serve [sic] of the notice of dispute;
(b) Failing resolution by negotiation by the parties within two business days of the service of the notice of dispute, the dispute shall be referred to a mediation and the parties shall be referred to a mediation and the parties shall submit to a mediation. The parties shall agree within a further seven days upon a mediation and if the parties shall fail to so agree then a mediator shall be nominated for that purpose by the then President of the Queensland Law Society (Inc);
(c) The mediation:
(i) shall take place within seven days of the appointment of the mediator; and
(ii) shall be confidential and any written statements prepared for the mediator by a party and any discussions between the parties and the mediator s [sic] before or during the mediation process shall be inadmissible in any legal proceedings between the parties.
25.4 Nothing in this agreement shall restrict the right of a party to obtain injunctive relief against actual or threatened conduct that may cause loss or damage at law or in equity.
274 In summary, Mr Tropoulos’ case was that the effect of the correspondence between the parties of 18 March 2016, 9 May 2016, 20 July 2016 and 27 July 2016 was that:
Mr Tropoulos sought mediation which involved (in part) a return to work in accordance with the letter from Dr Geffen of 20 May 2016;
a return to work in those circumstances had been rejected by Journey Lawyers;
the reason for the rejection was that Journey Lawyers wanted a certificate setting out that Mr Tropoulos was fit to return to work and carry out his duties in full in accordance with his contract of employment. That stipulation could only be because he was suffering from a depressive disorder, however a person who was not suffering from Mr Tropoulos’ disorder would not have had such a stipulation imposed upon him or her because there would be no need for such a certificate before mediation was entered into; and
accordingly, Mr Tropoulos was treated less favourably because of his disability.
275 During the hearing Mr Galvin gave the following evidence:
Right. So it was clear to you, wasn’t it, that on behalf of Mr Tropoulos, Susan Moriarty & Associates were saying, “We want to discuss a return to work program as outlined, certainly, in that letter of Dr Geffen of 20 May 2016”?---Correct.
Right. And you rejected that, didn’t you, that is, Journey Lawyers rejected that?---To the extent that we asked for a certificate – medical certificate saying he was fit to work as we took the view that it was premature to have discussion on that level of detail until we had a medical certificate saying it was – he was fit to work, to come back.
(Transcript p 295 lln 33-41)
276 And later:
Right. Thank you. And the short point of that letter is that what Mr Tropoulos through his solicitors was seeking to engage in, namely, a return to work in accordance with what Dr Geffen had said, was rejected; correct?---That’s correct.
All right. Now, in that letter, you’re not saying or the letter doesn’t say that this isn’t a matter that can go to mediation. It’s simply we’re not having mediation until the certificate – a medical certificate is given?---The intention was that there was little point in doing mediation on those issues until we knew that Mr Tropoulos was fit to come back to work.
But, see, if the issue is a return to work, there’s no point in mediation because if you’ve got a certificate that he’s fit to work, why would he want a return to work program?---Well, you would want – I assume – I took from that they wanted – if he had a certificate fit to work, we could sit down and discuss the issues that they had raised which is his salary, his – any supervision and his substantive ..... issues in the – in the letter.
But it’s not restricted to that, is it?---It could have been other things, yes.
Well – but specifically, the first paragraph that I’ve taken you to in the letter of 28 June refers to a refusal by Journey to instate – reinstate, to discuss a return to work program?---It was a certificate simply saying that we required a certificate to say he was fit to return to work.
Right. So by not discussing or by refusing to discuss that, you were really saying that’s not an issue until you give us a return to work certificate?---The reason I was saying I wanted a certificate is because the refusal to give a certificate was indicative that he wasn’t fit to come back to work.
No, but – right. And the reason he wasn’t coming back to work is because of the issues that he had in the past year so far as his depression was concerned – depressive disorder; correct?---I can’t necessarily agree to that, yes.
You can’t agree to it?---I – I – I can’t agree to it. Perhaps if you rephrase it, sorry.
All right. There were no other issues with respect to Mr Tropoulos that you were aware of that was preventing him to come back to work; correct?---Not necessarily because we – we had issues with those facts because by that time we had become aware, which we hadn’t – that even when we were negotiating a return to work previously that he was having medical treatment in – and then going to – having time in hospital. That raised serious concerns about his medical condition which we weren’t being – well, I would say that the – Mr Tropoulos’ lawyers weren’t forthright in his circumstances for – whether that was right or wrong, but they weren’t. But we were aware of it through various innuendo and Facebook and gossip that he was, in fact, in hospital at times, that he was receiving treatment, and we were also aware that he had put in an application to Sunsuper for money. So – on the basis that it was – that he had some sort of disability. So we were really taking the position that we wanted to see a certificate saying he was fit to come back to work.
Yes, but what I’m saying is that the certificate would have to relate to his depressive disorder about which you knew even though you may not have known the extent of it?---We were looking for a certificate to say he was fit to come back to work.
Yes, so that his depressive disorder was no longer an issue. That’s what you were looking for?---Yes.
Yes. So there was nothing else that involved Mr Tropoulos. It was that which had, if we go back, caused him to be away from work in August and then the subsequent aborted graduated return to work in October/November?---I can’t say that because my understanding was he was – we were initially told he was – had mild depressive issues, and then it turns out that he’s bipolar. So I can’t say what issues were – were there.
(Transcript pp 296-298)
277 In respect of this issue I make the following observations.
278 First, I note that there is authority that the Court will not order specific performance of a dispute resolution clause, notwithstanding that it may satisfy the legal requirements necessary for the Court to determine that the clause is enforceable, because supervision of performance pursuant to the clause would be untenable: Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194, 210. However as Giles J also observed in Hooper Bailie at 206:
What is enforced is not co-operation and consent but participation in a process from which co-operation and consent might come. The distinction is evident in the opening words of the chapter dealing with mediation made compulsory by law in Rogers and McEwen (op cit par 5.1): “Although parties to a dispute may ultimately refuse to settle in mediation, they are not always free to decline participation.”
279 At 209 in Hooper Bailie, Giles J also observed that an agreement to conciliate or mediate is enforceable in principle, if the conduct required of the parties for participation in the process is sufficiently certain. Given that cl 25.3 of Mr Tropoulos’ contract made provision for the appointment of a mediator, the timing of the holding of the mediation and the preparation of written statements, it is at least arguable that cl25 is sufficiently certain as to constitute an agreement to mediate. However as this issue was not pleaded, nor has it been the subject of submissions, I reach no conclusions as to the contractual enforceability of this clause (or any contractual relief potentially available).
280 Second, I consider it incongruous on the part of Mr Tropoulos to claim that a “reasonable adjustment” to his working arrangements in respect of his disability was for Journey Lawyers to enter into mediation with him pursuant to cl 25 of his employment contract, and that in failing to participate in mediation the firm similarly failed to make “reasonable adjustments”. Rather, by relying on cl 25, Mr Tropoulos asserts a right as a contractual party to the performance of this clause. His disability is, in my view, irrelevant to the existence or enforcement of that right. The requirement that Journey Lawyers comply with the clause is simply not a “reasonable adjustment” for the purposes of s 5(2) of the DD Act, and the firm’s alleged failure to comply with cl 25 was not a failure by the firm to “make” a reasonable adjustment.
281 Third, even if it were a “reasonable adjustment”, I am unable to see that there was a link between the refusal of Journey Lawyers to engage in mediation and Mr Tropoulos’ disability. As Gummow, Hayne and Heydon JJ relevantly asked in Purvis at [236]:
…the central question will always be—why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability
282 Causation in this context was also considered in detail by the Full Court in Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247. At [30] Bromberg J observed as follows:
Dr Sklavos contended that s 5(2) requires a different approach to causation and comparison than that required by s 5(1). That much I would not dispute. By introducing concern for the making of a reasonable adjustment as well as for the less favourable treatment, the question of causation under s 5(2) is not as straightforward as for s 5(1). This is because on the face of the terms of the provision, an issue is raised as to whether the causation question is directed to the reason for the discriminator’s failure to make the reasonable adjustment or to the reason for the less favourable treatment which results or to both of those matters. Dr Sklavos submitted that the primary judge’s concern for the College’s reasons for failing to make the reasonable adjustments were “irrelevant” and “distracting”. I do not agree. I see no reason why the causation question should not be asked in relation to all of the conduct of the alleged discriminator because the failure to make the adjustment will inevitably feed into the conduct of the discriminator constituting the treatment. The result is that where the disability is a reason for any of that conduct the causation element of s 5(2) will be established. The primary judge’s concern with the reason for the College’s refusal to make adjustments for Dr Sklavos was relevant and part of her Honour’s conclusion that nothing that the College did was because of Dr Sklavos’ disability.
283 In this case, the evidence of Mr Galvin demonstrated that the refusal of Journey Lawyers to attend mediation with Mr Tropoulos was because:
the firm did not consider that Mr Tropoulos had been entirely truthful about his medical condition in the past and that he continued to be evasive about the extent of his disability;
Mr Galvin was aware of evidence to the effect that Mr Tropoulos was undergoing serious medical treatment and had made a claim for total and permanent disability, such that the firm had reason to believe that Mr Tropoulos would be unable to return to work at all;
there was recent history over the course of the previous 12 months whereby Mr Tropoulos had endeavoured to return to work but was unable to maintain attendance; and
Journey Lawyers was concerned whether, in light of the possibly undisclosed extent of Mr Tropoulos’ disability, he would be able to discharge his duties as a lawyer with the firm, and accordingly there was no point engaging in dispute resolution unless it was clear that Mr Tropoulos actually could return to work and discharge those duties.
284 I am not satisfied that, because Mr Tropoulos had the disability he had, Journey Lawyers refused to engage in mediation with him.
285 However, even if I am wrong about the conceptualisation of the refusal of Journey Lawyers to engage in mediation as a “reasonable adjustment” and further if I am wrong about the issue of causation in this case, I am not persuaded that Journey Lawyers treated Mr Tropoulos less favourably than a person without his disability would have been treated in circumstances that were not materially different. There was no evidence to this effect advanced by Mr Tropoulos. I am not prepared to draw an inference that Journey Lawyers treated Mr Tropoulos less favourably within the meaning of s 5(2) of the DD Act.
Inherent requirements: working ½ days five days per week
286 I have set out, in detail, my views concerning whether Mr Tropoulos has substantiated his claim pursuant to s 5 of the DD Act.
287 Journey Lawyers however submits that, even if I were to find in favour of Mr Tropoulos within the terms of s 5 of the DD Act, they can successfully raise a defence pursuant to s 21A of the DD Act. Materially, this section provides:
Exception--inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person's past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator--the aggrieved person's performance in working for the discriminator
(c) any other factor that it is reasonable to take into account.
…
288 Mortimer J in Watts explained at [50]:
The interaction between the prohibitions against unlawful discrimination (on either of the bases within s 5) and the two exceptions of inherent requirements and unjustifiable hardship can be summarised in the following way. In all circumstances in which Div 1 of Part 2 would otherwise make discrimination at work unlawful, the “discriminator” (usually an employer but not necessarily) will have available the exception of unjustifiable hardship, but will bear the burden of proving the exception applies. In circumstances which do not involve the denial of a benefit, the limiting of access to opportunities for promotion and the like, or the imposition of any other detriment against an incumbent worker, the “discriminator” (usually an employer but not necessarily) will have available the exception of inherent requirements, but will bear the burden of proving its existence. The inherent requirements exception will apply to selections for promotion or transfer more generally. That is the purpose of the words in brackets in s 21A(1)(a), which are intended to cover the same field as the words at the end of s 21A(4). Broadly, in my opinion, the inherent requirements exception is intended to preserve for employers the entitlement to appoint, retain, promote or transfer employees who can fulfil core aspects of their employment contract.
289 Further, at [57] after positing examples of circumstances where reasonable adjustments would need to be made for an employee to transition back into the workplace, her Honour continued:
The protections intended to be delivered by the 2009 amendments to require accommodation for disabled people by way of reasonable adjustments would seem to be almost entirely undermined by construction of s21A (1) (b) which does not allow some time for the adjustment to take effect. This is consistent with the objective of substantive equality s 5 (2) is intended to pursue. The expression of s 21A (1) (b) in the conditional tense supports a construction of ‘unable’ which allows some time for the adjustment to take effect. This is not to say that any outer temporal limit (of a number of weeks or months or years) is implied into s 21A (1) (b), nor that a gloss such as ‘within a reasonable time’ is to be implied. Nor is there a need to limit the meaning of ‘unable’. Rather, it is to recognise that, read in context, the prohibitions contained in Div 1 of Part 2 of the DDA are intended to facilitate, in a variety of circumstances, disabled people performing, or continuing to perform, work for which they are qualified and of which they are capable, whether by training, experience or both. In this sense allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the ‘reasonable adjustments’ made, subject in any given case to the unjustifiable hardship exception.
(Emphasis added.)
290 I respectfully agree with and adopt this reasoning of her Honour.
291 In X v The Commonwealth [1999] HCA 63; (1999) 200 CLR 177 at [101] Gummow and Hayne JJ observed:
…Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated. Thirdly, the requirements to which reference must be made are the “inherent requirements of the particular employment”.
(Original emphasis.)
292 Importantly, Gummow and Hayne JJ in X v The Commonwealth also considered the meaning of the phrase “inherent requirements” in the context of the DD Act at [102]:
The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to "inherent" requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.
(Footnotes omitted, emphasis added.)
293 Relevant factors in considering the ability of an employee to perform inherent tasks for the purposes of s 21A of the DD Act would include the tasks or skills required for the work done in a particular position, the mental or physical capability of the employee to perform a task, the function the employee performs as part of the employer’s undertaking, the surrounding context of the employment, and the manner of organisation of the employer. A practical method of determining whether or not a requirement is “an inherent requirement”, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with: Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 at [36]. The fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question of whether it is an inherent requirement of the particular position in question (Christie at [37]). As Gleeson CJ observed in X v The Commonwealth at [37]:
Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.
294 The alleged discriminator bears the burden of proving that the complainant would be unable to carry out the inherent requirements of the particular work because of the disability. Journey Lawyers submits that Mr Tropoulos was employed to work full time as a family lawyer during office hours, for the purpose of generating revenue for his employer in the capacity of a Senior Associate with the firm, and he was unable to do this at any time during either his first or second return to work. Journey Lawyers submits further that, on the evidence, Mr Tropoulos would not have been able to do so on a third return to work. Journey Lawyers submits further in respect of s 21A(1)(b) that it would not have been a reasonable adjustment to create a new position for Mr Tropoulos in which he could attend work for whatever hours he was able to, cause a financial burden to his employer and perform at a low level.
295 While there was some evidence suggesting that Mr Tropoulos had suffered a diminution in his legal skills during his absence from the office, I am not persuaded that this was the case. I note for example Mr Tropoulos’ evidence that, in suggesting to Journey Lawyers that he had “forgotten how to be a lawyer”, he was being flippant (transcript p 197 lln 9-13). I accept that he was being flippant. Indeed this is consistent with the apparent view of Mr Galvin that he was not persuaded that Mr Tropoulos had lost any legal skills.
296 However in order to work as a lawyer, knowledge of the law and possession of relevant skills are not conclusive. The ability to put that knowledge and those skills into practice in such a way as to derive an income is critical.
297 Fundamentally in this case, I am satisfied that, because of his disability, at no time after 10 August 2015 Mr Tropoulos was able to carry out the inherent requirements of the job of senior family lawyer, or Senior Associate, notwithstanding the reasonable adjustments Journey Lawyers made for him. I am further satisfied that even if Journey Lawyers had made the specific adjustments sought by Mr Tropoulos – in particular permitting him to work half-days five days per week for several weeks on his return to work – Mr Tropoulos would not have been capable of performing his previous role at any time after 10 August 2015. The evidence before the Court strongly suggests that this was because of his anxiety, depression, lack of confidence, mental “fogginess” and fatigue, which were all aspects of the disability he suffered.
298 I note Dr Geffen’s repeated – and, as it transpired, unrealistically optimistic – predictions during the last months of 2015 and in early 2016 that Mr Tropoulos was capable of returning to work on a graduated basis, however I do not accept that this was the case. Mr Tropoulos’ unsuccessful first and second returns to work were indicative of the great difficulty he experienced in returning to the workplace, at all. Indeed in his affidavit of 14 February 2018, and at the hearing, Dr Geffen gave evidence that as at 4 March 2016 Mr Tropoulos was in no position to be able to return to the workplace because of the severity of his illness (transcript p 37 lln 21-25), although I note that Dr Geffen attributed the level of severity of Mr Tropoulos’ illness to correspondence from Journey Lawyers.
299 During the hearing Mr Tropoulos gave the following evidence:
Well, you knew all along, didn’t you, that your employment contract specifically stipulated that your return to work after a period of illness was conditional on the provision of a medical certificate certifying your fitness to return to work to discharge the duties and the responsibilities as required of you under your employment contract. You knew that, didn’t you?---Yes.
But as you’ve already told the court, you made no attempt to get such a certificate?---I got a certificate from Dr Geffen.
No, the certificate you got from Dr Geffen, I beg your pardon, was not a certificate certifying your fitness to return to work to discharge the duties and responsibilities as required under your employment contract, was it?---It was a certificate.
Yes, it was a certificate, but it was not a certificate certifying to those things?---I – I don’t think doctors certify specifically to those things.
No, it contained conditions in it which were - - -?---About, “I can - - -”
- - - inconsistent with - - -?--- “- - - get him well. He will be well if he knows that there will be a workable return-to-work program.”
Yes?---That’s what he was trying to say and he suggested - - -
That’s - - -?--- - - - a return-to-work program that we could talk about and finalise.
And that return to work program was one that was unacceptable to the employer, because it involved working part days?---No, it didn’t. It involved part days for a period of six weeks.
Yes, and that was not acceptable to the employer?---So - - -
Do you agree with that?---Yes, it obviously wasn’t - - -
(Transcript p 147 lln 16-47)
300 This evidence related to events in early 2016, and was further indicative of what in hindsight were the early overly-optimistic views of Dr Geffen (and Mr Tropoulos) as to the ability of Mr Tropoulos to return to work, and the unrealistic expectations of Mr Tropoulos that his health problems would be solved, and all would be well, if only Journey Lawyers developed and/or agreed to a better return to work program. Notwithstanding a conditional medical report dated 20 May 2016 from Dr Geffen in respect of Mr Tropoulos, Dr Geffen did not certify that Mr Tropoulos was fit to return to work. Rather, Dr Geffen opined that the differences between Mr Tropoulos and Journey Lawyers posed “a significant risk to his health if they are unresolved prior to his return to work”, and then prescribed a graduated return to work program, although contemplating that Mr Tropoulos might not be in a position to again work full time.
301 At the end of the day, respectfully, it is not the obligation of an employer to undertake responsibility for the recovery of an employee’s health. The obligation of the employer under the DD Act is to refrain from treating, or proposing to treat, the employee less favourably than the employer would treat an employee without the disability in circumstances that were not materially different, and in particular to make reasonable adjustments for the person.
302 The fact was (and I accept Mr Galvin’s evidence in this respect), that during the second return to work, Mr Galvin did not insist on strict compliance with the plan that Mr Tropoulos work alternate days, that Mr Tropoulos came and went from the office in a generally “ad hoc” arrangement, that in practice Mr Tropoulos regularly attended fewer days and that Journey Lawyers took no issue and adjusted his pay accordingly.
303 It is further clear that even if Mr Tropoulos had returned to work on 4 March 2016 in his previous role he would not have been able to work half-days five days per week. I am also not satisfied that if Mr Tropoulos had returned to work in July 2016 as he sought, he would have been able to sustain the ability to work in accordance with his contract, even if a graduated return to work program had been (again) provided.
304 I note that on 27 February 2018, Mr Tropoulos received a payout following an assessment that he was totally and permanently incapacitated. I consider it very likely on examining the evidence before the Court that, notwithstanding that this assessment took place in February 2018, Mr Tropoulos was actually unable to fulfil the requirements of a legal practitioner at a much earlier date.
305 In my view Journey Lawyers can rely on the defence in s 21A of the DD Act.
306 It follows that Journey Lawyers did not discriminate against Mr Tropoulos within the meaning of ss 5 or 15(2) of the DD Act.
307 In the amended statement of claim Mr Tropoulos alleged conduct on the part of Journey Lawyers which constituted victimisation of him in contravention of s 42 of the DD Act, and s 26(2) of the AHRC Act. In particular he pleaded as follows:
Victimisation by the respondent.
69. On 16 September, 2016 the applicant lodged a complaint of discrimination on disability grounds with the Australian Human Rights Commission [‘the Commission’].
70. On an unknown date but before 30 September, 2016, the Commission wrote to the respondents attaching a copy of the applicant’s complaint.
71. On 30 September, 2016, the second respondent wrote to the applicant’s solicitors, notifying of an intention to report the applicant to the Queensland Law Society alleging a suspected breach of s 51 of the Legal Profession Act 2007.
72. The letter of 30 September 2016 –
a. Falsely inferred that the applicant had resigned from his employment;
b. Wrongly inferred that the applicant’s absence from work was voluntary and at his own initiative;
c. Inferred that the alleged or suspected breach of s 51 of the Legal Profession Act was wilful or otherwise deliberate;
d. Advised that the applicant’s disability and/or absence on sick leave rendered him unable to satisfy the ‘fit and proper’ person test;
e. Foreshadowed the second respondent’s intention to notify the Queensland Law Society of the need to conduct an examination/suitability review of the applicant’s suitability to continue to hold a practising certificate
73. Such conduct detailed in the letter of 30 September 2016 constituted prejudice and detriments suffered by the applicant and constituted a breach of section 42 of the Act prohibiting victimisation.
74. The detriments were to the applicant’s character, professional reputation and mental health.
75. The respondent subjected the applicant to the detriments because the applicant had complained of discrimination on disability grounds in a complaint lodged with the Commission.
76. The applicant claims that the conduct in sending the letter and the letter’s adverse representations aggravated the effect of the disability discrimination.
77. The applicant claims the first respondent is vicariously liable for the said unlawful discrimination and victimisation by reason of its commission by the second respondent, a director and shareholder of the first respondent.
78. As a result of the unlawful discrimination and victimisation referred to in the pleadings, the second respondent has caused or contributed to or aggravated a medical condition suffered by the applicant known as Depressive Disorder.
…
80. The first and second respondent engaged in an act of victimisation against the Applicant, in contravention of section 12 of the DDA and section 26(2) of the Australian Human Rights Commission Act 1986 (Cth), by threatening to subject the Applicant to prejudice and detriment in his employment by notifying and inviting the Queensland Law Society to conduct an assessment against the Applicant on the basis that he was no longer a fit and proper person to act as a legal practitioner in Queensland.
308 In support of this aspect of the claim Mr Tropoulos submitted, in summary:
Section 42 of the DD Act created the offence of victimisation.
The application constitutes civil proceedings rather than criminal proceedings. The ability to bring civil proceedings stems from s 3 of the AHRC Act which relevantly defines unlawful discrimination as meaning any acts, omissions or practices that are unlawful under Pt 2 of the DD Act and includes any conduct that is an offence under Div 4 of Pt 2 of the DD Act.
The letter of 30 September 2016 subjected Mr Tropoulos to a threat of a detriment.
The letter of 30 September 2016 was written after Journey Lawyers was notified that Mr Tropoulos had lodged an “Application for Disability Discrimination” with the Commission. The application was referred to in the opening sentence of the letter.
The threat includes the fact that he would be subjected to the disadvantage of being scrutinised by the Queensland Law Society.
That the matters are linked can be demonstrated by the fact that, despite attesting to a positive obligation on the part of Mr Galvin in the letter in the letter of 30 September 2016, in fact no such notification was made (as was confirmed by the affidavit of Mr Galvin being Exhibit 10(R) at [60]).
309 Journey Lawyers rejected this claim, in summary on the basis that the conduct upon which Mr Tropoulos relied as constituting victimisation contrary to s 42 of the DD Act constituted the proper and lawful discharge by Mr Galvin of his professional responsibilities, in that Galvin:
held a bona fide and conscientious belief that Mr Tropoulos was not a “fit and proper person” to hold a current practising certificate issued under the LPA;
held a bona fide and conscientious belief that Mr Tropoulos was a “person currently … unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner”; and
was, or alternatively held a bona fide and conscientious belief that he was, under a duty to report to the QLS his concern that Mr Tropoulos was not a “fit and proper person” to hold a current practising certificate issued under the LPA.
310 Alternatively, Journey Lawyers contended that the conduct upon which Mr Tropoulos relied as constituting victimisation contrary to s 42 of the DD Act was mere damnum sine injuria.
311 In my view there are three issues for consideration:
Does this Court have jurisdiction to hear a complaint of victimisation under s 42 of the DD Act?
If yes, did the conduct of Journey Lawyers constitute victimisation?
If yes, does this conduct sound in damages or other relief?
Does the Court have jurisdiction to hear a complaint of victimisation?
312 Section 42 of the DD Act provides:
Victimisation
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
313 Whether, in light of the fact that s 42 creates an offence of victimisation, the Federal Court has jurisdiction to consider civil claims of victimisation, has been considered in a number of recent cases. In Winters v Fogarty [2017] FCA 51 Bromberg J examined a number of these cases in the context of considering an application to strike out pleadings pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). His Honour referred to the judgment of Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925 where Buchanan J said:
… Section 42 of the Act appears in Division 4 of Part 2 of the Act. Accordingly the Federal Magistrates Court has power to deal with an application alleging victimisation under the Act if a complaint to that effect is terminated under s 46PH of the HREOC act. Such proceedings are civil proceedings. They are to be distinguished from proceedings for an offence brought directly under s 42 of the Act (see O’Connor v Ross (No 1) [2002] FMCA 210 at [11]).
314 Bromberg J also referred to obiter observations of the Full Court in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [70]-[71], and further obiter observations of Gray J (with whom Reeves J agreed) in Walker v State of Victoria [2012] FCAFC 38.
315 In Dye the Full Court considered, inter alia, an appeal from the primary Judge who had refused to permit an amendment to pleadings. Materially the Court observed as follows:
70. The contested amendment proposed to par 75 had sought to add an allegation that Ms Dye could sue on an action on the case, in addition to her statutory right under s 46PO(3) of the AHRC Act. (The draft amendment referred to s 46 but that was an obvious typographical error for s 46PO and we were satisfied this could be corrected.) She asserted that the action on the case was open by reason of her pleaded allegations of victimisation in contravention of s 94 of the Sex Discrimination Act. Her Honour rejected this amendment because, she held, there was an exclusive remedy in s 46PO of the AHRC Act for redress in respect of unlawful discrimination, including victimisation under s 94 of the Sex Discrimination Act. As her Honour found, Ms Dye did not suggest that her proposed reliance on an action on the case added anything to her cause of action under s 46PO(3)… In arriving at this conclusion her Honour applied Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at 362-363 [20], 366 [31]-[32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
71. The primary judge was correct to have rejected this amendment because Re East [1998] HCA 73; 196 CLR 354 made it unarguable. The plurality held there that Pt III of the Racial Discrimination Act 1975 created the procedures and remedies available to a person who claimed to have been subjected to unlawful discrimination within the meaning of that Act: Re East 196 CLR at 364-365 [24]-[25]. Similarly, the purpose of s 46PO of the AHRC Act is to create a private cause of action by an individual, as well as by an applicant in a representative proceeding under Pt IVA of the Federal Court of Australia Act, for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act. That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act. Neither the AHRC Act nor the Sex Discrimination Act create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the former Act: Re East [1998] HCA 73; 196 CLR 354. It follows that the primary judge was correct to have rejected this proposed amendment to par 75.
(Emphasis added.)
316 In comparison, in Walker Gray J observed:
97. The question of the onus of proof leads to a difficult issue in relation to victimisation. It is abundantly clear that s 42 of the Disability Discrimination Act creates a criminal offence. The section is found in Div 4 of Pt 2 of the Disability Discrimination Act. The heading for Div 4 is “Offences”. Section 42(1) provides that the maximum penalty for an offence of victimisation is imprisonment for six months. Section 12A of the Disability Discrimination Act expressly imports Ch 2 of the Criminal Code (found in the Schedule to the Criminal Code Act 1995 (Cth)), except for Pt 2.5 (which relates to corporate criminal responsibility), with respect to all offences against the Disability Discrimination Act.
98. It is undeniable that a complaint can be made to the Commission in respect of victimisation, pursuant to s 46P(1) of the Human Rights Act. Such a complaint may be made “alleging unlawful discrimination.” The definition of “unlawful discrimination” in s 3(1) of the Human Rights Act specifically “includes any conduct that is an offence under...Division 4 of Part 2” of the Disability Discrimination Act. There is a question whether, when a complaint has been terminated and a proceeding may be commenced in this Court or the Federal Magistrates Court, pursuant to s 46PO(1) of the Human Rights Act, such a proceeding can be commenced in respect of conduct that amounts to an offence. The specific conferral of jurisdiction to deal with an application is found in s 49B of the Human Rights Act. Jurisdiction is conferred on this Court and the Federal Magistrates Court only with respect to civil matters. The general conferral on this Court of jurisdiction in any matter arising under an Act of the Commonwealth Parliament, found in s 39B(1A)(c) of the Judiciary Act 1903 (Cth) contains a specific exclusion of “a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”
99. It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37]-[41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether “conduct that is an offence” under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court.
100. These questions were not argued fully in the present case, and there is no need to answer them. They do need to be the subject of authoritative answer.
(Emphasis added.)
317 In Winters v Fogarty Bromberg J declined to make an order that the pleadings be struck out, on the basis that his Honour was not persuaded there was no reasonable question to be tried as to the Court’s jurisdiction, and because his Honour took the view that the challenge made to the Court’s jurisdiction was not a sufficient basis for striking out the claims made by the applicant of victimisation. His Honour noted that the Commission had jurisdiction to inquire into and attempt to conciliate complaints of “unlawful discrimination”, and that conduct constituting an offence of victimisation was included within the definition of “unlawful discrimination” for the purposes of s 3 of the AHRC Act.
318 More recently in Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575 White J heard an interlocutory application seeking, inter alia, an order for the separate hearing of whether the Court had jurisdiction to hear and determine the applicant’s victimisation claim based on s 94 of the Sex Discrimination Act 1984 (Cth). His Honour noted that there had been a conflict of opinion at both first instance and on appeal in the Federal Court, and noted at [16] that there was a live issue as to this Court’s jurisdiction to hear and determine claims based on allegations of victimisation in contravention of s 94 of the SD Act and that a decision of the Full Court, at the least, would be necessary for that issue to be authoritatively determined.
319 I note that s 3 of the AHRC Act defines unlawful discrimination as including conduct which is an offence under Div 4 of Pt 2 of the DD Act, which includes the offence of victimisation, and that if a complaint is terminated by the Commission under s 46PH of the AHRC Act then proceedings may be brought pursuant to s 46PO of the AHRC Act (as occurred here). I agree with the views of Bromberg J and White J that there is a live issue whether the Federal Court can entertain a civil claim of victimisation under the DD Act notwithstanding that s 42 provides that it is a criminal offence. Notwithstanding the inconclusive state of Full Court authority on this point, for the purposes of the present application, I am prepared to accept that the Court does have the jurisdiction alleged by Mr Tropoulos and can consider whether Mr Tropoulos has a civil action against Journey Lawyers for victimisation under the DD Act.
Was there an act of victimisation on the part of Journey Lawyers?
320 I now turn to the second question in respect of this aspect of the claim, namely whether Journey Lawyers committed an act of victimisation against Mr Tropoulos.
321 In this case the relevant act of Journey Lawyers alleged by Mr Tropoulos was the letter from Journey Lawyers to Mr Tropoulos’ lawyers dated 30 September 2016. In particular Mr Tropoulos claims that this letter set out a threat to notify the Queensland Law Society that Mr Tropoulos was unable to provide a medical certificate, with the relevant detriment including:
detriment to Mr Tropoulos’ character, professional reputation and mental health;
aggravation of Mr Tropoulos’ mental condition; and
the prospect that Mr Tropoulos would be subject to the disadvantage of being scrutinised by the Queensland Law Society on the basis that he was no longer a fit and proper person to act as a legal practitioner in Queensland.
322 Mr Tropoulos claims that the reason for that act was that he had lodged a complaint of discrimination on disability grounds on 16 September 2016. This, he claimed, fell within s 42 (2)(a) of the DD Act as a relevant ground for the purposes of s 42.
323 Section 42 of the DD Act requires a direct causal link between the relevant act of victimisation – namely subjecting, or threatening to subject, a person to any detriment – and the reason for that act – namely the protected conduct of the alleged victim set out in s 42(2) of the DD Act. The direct causal link is required by the words “on the ground that” in s 42(2). The policy rationale is clear: the intent of the legislature is to ensure that persons who believe they have been the subject of discrimination are not deterred from pursuing their rights for fear of reprisals or further disadvantage (see, eg, NSW Law Reform Commission Review of the Anti-Discrimination Act 1977 (NSW) Report 92, 1999 at [7.150]). However, and regardless of the singular “ground” to which reference is made in s 42(2), it also appears that the protected conduct need not be the sole factor motivating the alleged detriment, provided that it is a substantial or operative factor in causing the alleged detriment. As Buchanan J observed in Penhall-Jones at [85]:
Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance…
324 Whether the causal nexus is established for the purposes of s 42(2) is clearly a question of fact (see discussion in Rees N, Rice S and Allen D, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, Federation Press, 2018) at 784 [14.3.14]-[14.3.15] and Ronalds C and Raper E, Discrimination Law and Practice (5th ed, Federation Press, 2019) at 129-130).
325 The meaning of “detriment” in s 42(2) was examined in the context of equivalent provisions in the Equal Opportunity Act 1984 (WA) by McKechnie J in Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146. His Honour said:
165. “Detriment” is defined by the “Macquarie Dictionary” as “loss damage or injury”.
166. “Injury” is harm of any kind done or sustained or a wrong or injustice suffered.
167. Clearly “injury” can take many forms and is not limited to physical harm. Psychological damage may amount to an injury.
168. An injustice or wrong may amount to an injury especially if deliberately inflicted in order to victimise the person. In O'Callaghan v Loder (1983) 3 NSWLR 89, Mathews DCJ, after discussing the English decision in Ministry of Defence v Jeremiah [1980] QB 87 said at 105:
“... I consider that we should adopt the meaning ascribed to the word ‘detriment’ by Brandon LJ, and treat it as requiring that a complainant has been placed under a disadvantage in comparison with employees of the opposite sex.
The disadvantage must be a matter of substance; the legislation is not directed to trivial distinctions in the treatment afforded to men and women.”
169. Her Honour noted that essentially, it is a matter of fact to be determined in each individual case.
170. With respect, I agree that the disadvantage must be a matter of substance. Even if there was evidence of disadvantage to Mrs McIntosh from restricted access to computer programs, I would not regard such disadvantage as a detriment.
(See also the discussion in Rees, Rice & Allen at 783 [14.4.13] and Ronalds & Raper at 128-129)
326 It is uncontroversial that, as at 30 September 2016, Mr Galvin (and Journey Lawyers) knew of Mr Tropoulos’ complaint to the Commission. It is also uncontroversial that, in fact, Journey Lawyers did not contact the Queensland Law Society as foreshadowed in the letter of 30 September 2016. Notwithstanding this inaction, a threat can be an act of victimisation for the purposes of s 42(2) of the DD Act.
327 There is some authority that whether something constitutes a detriment is an objective question, such that the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment (see, eg, Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [42]). It is unnecessary for me to conclusively determine this issue. Placing to one side the question whether such an inquiry was justified or appropriate, I am satisfied, as a general proposition, that an inquiry by the Queensland Law Society into whether Mr Tropoulos was a fit and proper person to hold a practising certificate could potentially constitute a substantial disadvantage to Mr Tropoulos, such that the consequences would constitute a “detriment” to him as claimed for the purposes of s 42(2) of the DD Act. I am also satisfied that, by the letter of 30 September 2016, Journey Lawyers threatened to subject Mr Tropoulos to such detriment.
328 However, I note that little evidence of damage or injury to Mr Tropoulos was provided, other than general statements by Mr Tropoulos concerning the distress he felt following receipt of the letter (transcript p 210 lln 26-42). No evidence of damage (potential or otherwise) to his reputation, including the perception of others in respect of such an inquiry, was produced (see similar discussion in Burns v Sunol (No 2) [2017] NSWCATAD 236 at [78]).
329 Even if Mr Tropoulos has established that he has been subjected to detriment, or a threat of detriment, within the meaning of s 42(2) of the DD Act by the letter of 30 September 2016, he must show that Journey Lawyers subjected him, or threatened to subject him, to such detriment because Mr Tropoulos lodged the complaint with the Commission.
330 In his affidavit affirmed 10 October 2017 Mr Galvin deposed:
57. Solicitors' Practicing Certificates are renewed in May each and because we expected the Applicant to come back to work full-time at some stage, we paid his practising certificate fees in May 2016, before I became aware of the full nature and extent of the Applicant's illness.
58. Once I received the complaint to the Human Rights Commission that disclosed that the Applicant had also been diagnosed with bipolar disorder and had been hospitalized on a number of occasions I was concerned about my professional obligations. I was concerned about paying his practising certificate as it could have been seen to be supporting his application.
59. I believed that the Applicant should have informed the Law Society about his condition so that they could assess whether he was fit to practice.
60. I subsequently wrote to the Applicant's lawyers raising this issue but the aggressive response from them was such that I took the matter no further. However I refused to pay the Applicant's Practicing Certificate for the 2017 year.
331 In the letter of 30 September 2016, Mr Galvin noted that under s 117 of the LPA, he had a positive obligation as a director of an incorporated legal practice to ensure that a breach of the LPA did not occur by an Australian legal practitioner, and further that s 51 of the LPA provides that for a person to hold a practicing certificate, they must be a “fit and proper” person. Mr Galvin also referred in his letter to Mr Tropoulos to the decision of the Court of Appeal of Western Australia in Skerritt v The Legal Practice Board of Western Australia [2004] WASCA 28, and I note in particular the observation of the Court of Appeal at [47] that:
Issues of the mental health of an applicant are obviously issues which may warrant enquiry, since some may be capable of having a bearing upon an applicant's fitness to practice. In an extreme case, as we have noted, depression may be relevant.
(Emphasis added.)
332 This evidence on the part of Mr Galvin is plausible. Mr Tropoulos gave consistent evidence that he was ashamed of his condition and afraid of losing his position with Journey Lawyers. I am satisfied that as a result he was reluctant to be candid with the firm in respect of his medical condition and the extent of his disability. I also note other evidence from Mr Galvin that he became aware through social media, after Mr Tropoulos’ second unsuccessful return to work, of what appeared to be Mr Tropoulos’ medical treatments and the extent of his disability, notwithstanding that Mr Tropoulos did not disclose either. To that extent, the contents of Mr Tropoulos’ complaint to the Commission confirmed the nature of those treatments and the extent of Mr Tropoulos’ disability, and provided information to Journey Lawyers which caused the firm, and in particular Mr Galvin, professional concern in respect of his own obligations under the LPA.
333 I am satisfied that the letter of 30 September 2016 from Journey Lawyers did not constitute a threat to Mr Tropoulos to report him to the Queensland Law Society because Mr Tropoulos had made a complaint to the Commission. Rather, the evidence suggests that Journey Lawyers, and in particular Mr Galvin as director of the firm, was concerned that it had paid for a practising certificate in respect of a legal practitioner who was not a fit and proper person for the purposes of s 419 of the LPA, and to that extent the firm was holding Mr Tropoulos out as being fit and proper legal practitioner in contravention of the legislation. Section 9(1)(n) of the LPA provides, for example, that suitability matters in relation to a natural person includes whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.
334 It follows that the actions of Journey Lawyers were solely motivated by Mr Galvin’s desire to protect himself as well as Journey Lawyers in light of the information which had come to the firm’s attention following Mr Tropoulos’ complaint to the Commission. The letter was in the nature of an advice to Mr Tropoulos’ lawyers as to what Journey Lawyers proposed to do, namely inform the Queensland Law Society in respect of a matter which Journey Lawyers believed it was under a legal obligation. The action to which the letter referred may have followed information which came to Journey Lawyers’ attention following Mr Tropoulos’ complaint – it was not, however, because of his complaint within the meaning of s 42(2). The requisite causal link between the act of Journey Lawyers, and the complaint, was not there.
335 I am not satisfied that Journey Lawyers can be taken to have committed an act of victimisation against Mr Tropoulos within the meaning of s 42 of the DD Act. In these circumstances it is not necessary for me to determine available, or appropriate, remedies.
CONCLUSION
336 Mr Tropoulos’ application before the Court should be dismissed.
337 Ordinarily, costs follow the event: Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] [2015] HCA 53; (2015) 90 ALJR 270 at [6], Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. However, Journey Lawyers has submitted that this may be a case where it is appropriate for the Court to exercise discretion pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) to depart from the usual order as to costs and to order that costs be assessed on the indemnity basis. It makes this submission on the following grounds:
Mr Tropoulos is a qualified lawyer.
In the course of cross-examination, Mr Tropoulos appeared to make admissions that aspects of his statement of claim were not true, especially in relation to his “belief”.
A lawyer is required to certify the claims made in the statement of claim.
Mr Tropoulos made his TPD Claim and concurrently pressed for a remedy of reinstatement in this matter (though the claim for reinstatement was withdrawn at the beginning of the trial).
Indemnity costs were previously awarded in respect of the inclusion of Mr Galvin as the former second respondent to this application, on the basis that Mr Galvin was improperly included as a respondent.
Mr Tropoulos’ lawyers hold themselves out to have expertise in the area of anti-discrimination law.
Mr Tropoulos persisted with a claim for reinstatement until he abandoned that aspect of his claim in March 2018, notwithstanding that he had been certified as totally and permanently unfit and received a substantial payout from his insurers in November 2017.
338 Recently in Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32 at [48] the Full Court affirmed the principles on which costs ought to be awarded on an indemnity basis. As their Honours observed:
It has long been established that the Court may, in the exercise of the discretion under s 43 of the FCA Act, award costs on a solicitor/client or indemnity basis where the particular circumstances of the case warrant the Court departing from the ordinary practice of awarding costs on a party and party basis. As Sheppard J explained in Colgate Palmolive Company v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225 (Colgate Palmolive) at 233, there should be some special or unusual feature in the case to justify the Court departing from the ordinary practice. Examples of circumstances identified by Sheppard J which may justify an order for indemnity costs include “an imprudent refusal of an offer to compromise”: Colgate Palmolive at 233 [5]. This includes, but is not necessarily limited to, the refusal of a so-called “Calderbank offer”.
339 Similarly in Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 Graham J observed:
43 The ordinary rule is that, where the Court orders that the costs of one party to litigation be paid by another party, the order is for payment of those costs on the party and party basis. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court departing from the usual course. The existence of particular facts and circumstances capable of warranting the making of an order for payment of costs on the indemnity basis does not mean that judges are necessarily obliged to exercise their discretion to make such an order. Normally, costs are at the discretion of the trial judge. Provided that the discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case, its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
44 If a proceeding has no prospects of success it may well be appropriate to make an order for the payment of costs by an unsuccessful party on an indemnity basis rather than a normal party and party basis.
45 In Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 at [19] a Full Court consisting of Lee, Carr and Sackville JJ said:
‘If an action is commenced when proper advice would indicate that the proceeding has no prospect of success, a discretion to award indemnity costs is ordinarily enlivened. ...’
(See also Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [133], Seven Network Limited v News Limited [2009] FCAFC 166; (2009) 182 FCR 160 at [1102] per Dowsett and Lander JJ).
340 I am satisfied costs should follow the event, however I am not persuaded that the costs should be awarded against Mr Tropoulos on an indemnity basis.
341 I am not satisfied that proceedings in this case were commenced or continued for any ulterior motive, or in wilful disregard of known facts or clearly established law. As was clear from his evidence, Mr Tropoulos held a genuine belief that he had been wronged, and that he was entitled to relief under the DD Act. That I have found that he is not entitled to the relief he has claimed does not mean that the proceedings were in any way frivolous or vexatious.
342 I am not satisfied that groundless contentions were made – it is clear that Mr Tropoulos did, and I understand does, suffer from a disability within the meaning of the DD Act.
343 Further, the fact that Mr Tropoulos has been unsuccessful in his claim does not mean that he has pursued his claim in disregard of the facts or law. He was advised by lawyers, and ably represented by Counsel in the proceedings. Sound submissions were made in support of his case. While an issue arose in the course of the hearing concerning the availability of the claim against Mr Galvin personally, that has been resolved and relevant costs orders made.
344 The complexity of issues arising in this case is reflected in the relative length of these reasons. I am not satisfied that the case never had prospects of success, such that it ought not to have been commenced. That there remains some uncertainty about legal issues in relation to the availability of civil remedies in respect of victimisation claims under the DD Act is not, with respect, the fault of Mr Tropoulos.
345 The appropriate orders are that:
(1) The originating application under the Australian Human Rights Commission Act 1986 (Cth) filed on 25 January 2017 be dismissed.
(2) The applicant pay the costs of the respondent on a party-party basis, to be taxed if not otherwise agreed.
I certify that the preceding three hundred and forty-five (345) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
