A recent Federal Court decision has clarified an employers obligation to make ‘reasonable adjustments’ for an employee suffering mental illness. The case, Tropoulos v Journey Lawyers Pty Ltd (2019) FCA 436, involved a lawyer who was unable to work due to worsening of pre-existing depression. The employee sought to recommence work after six months absence and his employer offered several adjustments to accommodate his return. The employer consulted with the employees treating practitioners and the employee was offered ample recovery time, additional leave and a working schedule of three full alternate days. This arrangement meant that the employee had reduced earnings and responsibilities, his office was reallocated and the nature of the work changed. The employee rejected the offer and brought a claim of unlawful discrimination under section 5(2) of the Disability Discrimination Act 1992 (Cth). This provision requires an employer to provide ‘reasonable adjustments’ for an employee returning to work following a major depressive episode.

Under the Act a ‘reasonable adjustment’ is one which would not impose unjustifiable hardship on the business. In their assessment the Court balanced the competing needs of the employee and the business. Ultimately the Court found no breach of the law. The employees demands, including half-days and reinstatement of a his previous duties, salary and office would have created unjustifiable hardship on the practice, particularly given the limited resources of the small firm. This decision highlights the importance of supporting employees with mental illness by making necessary adjustments which do not cause unjustifiable hardship. Contact M+E for further information and guidance if such an instance arises.


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