Tropoulos v Journey Lawyers Pty Ltd
[2019] FCA 436
•2 April 2019
FEDERAL COURT OF AUSTRALIA
Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436
File number: QUD 33 of 2017 Judge: COLLIER J Date of judgment: 2 April 2019 Catchwords: HUMAN RIGHTS – employment – discrimination – direct discrimination under Disability Discrimination Act 1992 (Cth) s 5(2) – legal practitioner – where employee suffers from depressive disorder – reasonable adjustments to nature of employment – whether working five half days per week is reasonable adjustment – whether adjustment would impose unjustifiable hardship on employer within meaning of Disability Discrimination Act 1992 (Cth) s 21B
HUMAN RIGHTS – employment – discrimination – appropriate hypothetical comparator – whether an employee injured at work is an appropriate comparator
HUMAN RIGHTS – employment – discrimination – reasonable adjustments – where contractual dispute not pleaded – whether failing to engage in mediation was failure to make reasonable adjustments – whether employer treated “less favourably” – whether instructing counsel on first day back at work, reallocation of clients to other lawyers and allocation of legal aid clients, office relocation, change in position and salary failed to constitute reasonable adjustments
HUMAN RIGHTS – exception – inherent requirements of employment – whether employee could satisfactorily carry out inherent requirements of practice as Australian legal practitioner – victimisation – director of incorporated legal practice – duties and responsibilities – whether Legal Profession Act 2007 (Qld) s 117 requires director to report person who may not be “fit and proper” – whether threat of victimisation occurred because of disability
PRACTICE AND PROCEDURE – jurisdiction – whether Federal Court has jurisdiction to hear complaint of victimisation – Disability Discrimination Act 1992 (Cth) s 42
EVIDENCE – admissibility and relevance – expert opinion evidence – specialised knowledge – evidence of family law – whether knowledge of conduct of daily practice in family law is specialised
COSTS – whether appropriate to depart from usual order as to costs – whether costs ought to be assessed on indemnity basis
Legislation: Australian Human Rights Commissioner Act 1986 (Cth) ss 3, 26, 46PO, 46PH
Disability Discrimination Act1992 (Cth) ss 3, 4, 5,11, 15, 21A, 21B, 29A, 42
Evidence Act 1995 (Cth) s 79(1)
Federal Court of Australia Act 1976 (Cth) s 43
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Explanatory Memorandum to the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth)
Federal Court Rules 2011 (Cth)
Legal Profession Act 2007 (Qld) ss 9, 51, 118, 418
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 228
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)
UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008)
Cases cited: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Browne v Dunn (1893) 6 R. 67
Burns v Sunol (No 2) [2017] NSWCATAD 236
Collier v Austin Health [2011] VSC 344; (2011) 36 VR 1
Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] [2015] HCA 53; (2015) 327 ALR 192
Forbes v Australian Federal Police [2004] FCAFC 95
Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146; (2000) EOC 93-096.
Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575
Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
Myers v R [2016] AC 314 (PC)
O’Brien v Gillespie (1997) 41 NSWLR 549
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Penhall-Jones v New South Wales [2007] FCA 925
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280
Re Rochdale and Haslingden [1899] 1 QB 540
Seven Network Limited v News Limited [2009] FCAFC 166; (2009) FCR 160
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Skerritt v The Legal Practice Board of Western Australia [2004] WASCA 28; (2004) 29 WAR 173
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247
State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581
Tropoulos v Journey Lawyers Pty Ltd [2018] FCA 347
Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32
Walker v State of Victoria [2012] FCAFC 38
Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220
Winters v Fogarty [2017] FCA 51
X v The Commonwealth [1999] HCA 63; (1999) 200 CLR 177
Corones S, Stobbs N and Thomas M, Professional Responsibility and Legal Ethics in Queensland (2nd ed, Lawbook, 2014)
Rees N, Rice S and Allen D, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, Federation Press, 2018)
Ronalds C and Raper E, Discrimination Law and Practice (5th ed, Federation Press, 2019)
Date of hearing: 11 October 2017, 13-15 March 2018 and 18 June 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 345 Counsel for the Applicant: Mr K Watson Solicitor for the Applicant: Susan Moriarty & Associates Counsel for the Respondent: Mr A Morris QC Solicitor for the Respondent: Journey Family Lawyers ORDERS
QUD 33 of 2017 BETWEEN: STEVEN TROPOULOS
Applicant
AND: JOURNEY LAWYERS PTY LTD ACN 125 790 605
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
2 APRIL 2019
THE COURT ORDERS THAT:
1.The originating application under the Australian Human Rights Commission Act1986 (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.
REASONS FOR JUDGMENT
TABLE OF CONTENTS
INTRODUCTION
[1]
BACKGROUND
[8]
Depressive disorder
[8]
Mr Tropoulos’ employment history, and Journey Lawyers
[9]
Deterioration in Mr Tropoulos’ condition
[16]
Key events in respect of the complaint
[23]
1. First return to work – 22 September 2015
[24]
2. Absence from work – 23 September to 20 October 2015, and relevant correspondence
[25]
3. Second return to work – on or about 19 October 2015
[29]
4. Email of 9 December 2015
[31]
5. Email of 9 February 2016
[34]
6. Letter of 24 February 2016
[37]
7. Letters of 15 March 2016 and 18 March 2016
[38]
8. Letters of 7 April 2016 and 9 May 2016
[42]
9. Letter of 28 June 2016 and Dr Geffen’s report of 20 May 2016
[44]
10. Letter of 7 July 2016
[46]
11. Letter of 20 July 2016
[47]
12. Letter of 27 July 2016
[49]
13. Letter of 30 September 2016
[50]
The Australian Human Rights Commission proceeding
[51]
Total and Permanent Disability
[54]
THE PLEADINGS
[55]
The applicant’s case
[55]
The respondent’s case
[56]
RELEVANT EVIDENCE
[59]
The evidence of Mr Tropoulos
[59]
Evidence of Dr Geffen
[71]
The evidence of Mr Galvin
[80]
The evidence of Ms Manderson
[102]
RELEVANT LEGISLATIVE PROVISIONS
[118]
SUBMISSIONS OF THE PARTIES
[128]
CONSIDERATION
[130]
Did Mr Tropoulos suffer from a “disability” within the meaning of the DD Act?
[133]
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]
General principles
[140]
Working half-days five days per week – whether reasonable adjustment
[153]
Return to work arrangements – whether reasonable adjustment
[207]
Instructing Counsel on his first day back
[210]
Lack of briefings of Mr Tropoulos by Journey Lawyers on his return to work
[220]
Reallocation of his clients to other lawyers and allocation of legal aid clients to him
[225]
Failure to return Mr Tropoulos to his former office
[234]
Position and salary of Senior Associate
[237]
Conclusion
[270]
Engaging in mediation with Mr Tropoulos – whether reasonable adjustment
[272]
Inherent requirements: working ½ days five days per week
[286]
Victimisation claim
[307]
Does the Court have jurisdiction to hear a complaint of victimisation?
[312]
Was there an act of victimisation on the part of Journey Lawyers?
[320]
CONCLUSION
[336]
COLLIER J:
INTRODUCTION
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).
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.
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.
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.
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.
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.
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.
BACKGROUND
Depressive disorder
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
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.
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.
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.
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.
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.
The firm’s primary practice is in the Family Court of Australia and the family law jurisdiction of the Federal Circuit Court of Australia.
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
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.
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.
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.
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.
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.
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.
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
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
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
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.)
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.
…
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.
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
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.
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.
4. Email of 9 December 2015
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.
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.
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
5. Email of 9 February 2016
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
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.
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.
6. Letter of 24 February 2016
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
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.
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.
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.
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
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.
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
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.
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.
10. Letter of 7 July 2016
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
11. Letter of 20 July 2016
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.
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.
12. Letter of 27 July 2016
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
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
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.
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.
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
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.
THE PLEADINGS
The applicant’s case
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.)
The respondent’s case
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.
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.
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.)
RELEVANT EVIDENCE
The evidence of Mr Tropoulos
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.
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.
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?
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.
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.
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.
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…
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).
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)
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.
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.
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]).
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.
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.
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.)
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.
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.
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.
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
Mr Tropoulos’ application before the Court should be dismissed.
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.
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”.
Similarly in Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 Graham J observed:
43The 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.
44If 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.
45In 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).
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.
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.
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.
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.
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.
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:
Dated: 2 April 2019
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