169 Counsel for Mr Tropoulos put to Mr Galvin that Journey Lawyers had directed Mr Tropoulos to work three alternate days a week. Mr Galvin said, inter alia:
Ms Hawley is saying that you have confirmed that Mr Tropoulos will come back three days per week, the same as last time. That's what you said?---Yes.
Right. And the same as last time was Monday, Wednesday and Friday?---I think you would say that was aspirational because it was at a tentative arrangement in that you only work Monday, and as for a direction, we didn't ever send him a - an email saying, "You failed to work Wednesday or Friday where it's part of a return to work effort." We tried and it didn't work, so we just moved on.
Well, you're not answering the question, with respect, Mr Galvin?---Sorry.
I'm saying to you that whether you call it a directive or whatever, the arrangement was - the understanding was that he was to work Monday, Wednesday and Friday?---Well, I think there's a difference between a directive and an understanding that the general - the general thing was that he - he - he would be working Monday, Wednesday and Friday and if that was a problem, he would let us know.
(Transcript p 277 lln 19-34)
170 During cross-examination of Mr Galvin, Counsel for Mr Tropoulos challenged Mr Galvin's accuracy in respect of Mr Tropoulos' working hours during that period, and put to Mr Galvin the possibility that Mr Tropoulos could have worked non-billable hours which were not recorded in the firm's billing processing system, PCLaw (see transcript p 246 lln 20-21). Mr Galvin conceded that there could be some minor inaccuracies but overall relied on the PCLaw data. I note the following interchange between Mr Watson for the applicant and Mr Galvin:
All right. All right. So, in terms of knowing when Mr Tropoulos worked, you can only go off what's recorded in the documentation like PCLaw?---I can - I go off the - there was no reason for me to check on Mr Tropoulos as whether he was at work or not. Generally, he was - he was. However, our systems were that he would record his time when he was working in PCLaw, and he had been there for years doing that system, so he was - I was comfortable he did that. And secondly, in terms of attending work or being sick or not attending work, the protocol was that he would notify Julie, as would any staff member if they were at work or not at work, and that would then get recorded in his pay.
(Transcript p 249 lln 21-29)
171 Subsequently Mr Galvin stated during cross-examination:
No, please continue to explain what you were saying?---So the practice is that the lawyers put in their time entries when they do work. They normally will always put in their billable work, and if there's non-billable works they will sometimes put that in as well.
Yes?---The billable work then goes to the system for sending bills out and whatever. When I started to collate this, I did notice that a couple of times 5 entries that Mr Tropoulos had put in during this period were actually on the wrong dates. That's not an uncommon occasional problem I have with the lawyers because they don't close the accounting system down at the end of the day. When they open it up the next day it is still open from - and transmits the wrong unless they manually change it, so sometimes you get little errors like that.
(Transcript pp 250-251)
172 While various discrepancies in hours worked by Mr Tropoulos were highlighted by Counsel for Mr Tropoulos during the cross-examination of Mr Galvin, as I noted earlier in this judgment I am satisfied that the discrepancies were minor. It may also be that Mr Tropoulos worked some hours at Journey Lawyers which were not billed or accounted for by PCLaw. I am satisfied however that the tabular evidence of Mr Galvin is sufficiently accurate. Indeed, Mr Tropoulos' evidence was consistent with Mr Galvin's evidence as to his days and hours of working. I note, for example, the following exchange between Mr Morris of Counsel for the respondent and Mr Tropoulos during cross-examination:
Yes. And you weren't able to keep up even with three days a week, were you?---No. I did three days a week some weeks and two days a week some weeks. The days I didn't do three - sorry. The weeks I didn't do three days was because I was ill.
Because you were ill?---Yes.
With your depression or ill with something else?---Either or. I can't remember.
Can't remember. All right. Do you agree with the summary that Mr Galvin has provided as to the days that you worked?---Yes.
And do you agree with the summary that he has provided of the billable hours which you recorded on those days?---I - well, I think so. I don't know what I billed. I can't remember what I billed. You can change things on there. The initial appointments don't get billed - don't - we don't record them.
(Transcript p 139 lln 1-15)
173 It is clear that, after the first week of the second return to work period, Mr Tropoulos did not work full days on the days he attended the office and further did not attend each of the alternate working days. It appears that this occurred with the full knowledge and consent of Journey Lawyers. As I have already found, Mr Galvin was a credible witness, and his evidence is plausible. It makes perfect sense, in light of Mr Tropoulos' performance as a lawyer with Journey Lawyers prior to August 2015, the evidence that he was well thought of as a lawyer such that he would be appointed a Senior Associate (which position he retained during the second return to work period), the preparedness of the firm to liaise with Dr Geffen, the awareness of Mr Galvin of Mr Tropoulos' condition, and the preparedness of the firm to discuss with Mr Tropoulos the hours with which he would be comfortable working, that, in circumstances where Mr Tropoulos was unable to work particular days at Journey Lawyers during his second return to work, the firm accommodated those absences. Mr Galvin deposed that Journey Lawyers gave Mr Tropoulos full leeway in returning to work, attending as and when he chose on the days that he chose - in my view the totality of the evidence before me supports this assertion.
174 It follows, notwithstanding Mr Tropoulos' complaint that Journey Lawyers failed to make or propose to make reasonable adjustments for him by permitting him to work half-days five days per week, that in fact Journey Lawyers did not insist on Mr Tropoulos working full working days on the alternate days, and further that Journey Lawyers allowed Mr Tropoulos to work half- days when it suited him. The DD Act does not require any level of formality to attend the making of reasonable adjustments or relevant proposals. Notwithstanding that the parties aspired to Mr Tropoulos working full days on alternate days of the week, the informal arrangement which appeared to be implemented from shortly after the second return to work period between August and December 2015 (namely Journey Lawyers' consent to him working such hours as he could) accorded with his requirements of not working full days.
175 To that extent, in his working hours on his return to work, I am satisfied that Journey Lawyers did make reasonable adjustments for Mr Tropoulos within the meaning of s 5(2) of the DD Act.
176 In respect of those working hours, and noting that Mr Tropoulos' disability continued past the first few weeks of his second return to work, a question arises whether Journey Lawyers failed to make reasonable adjustments for Mr Tropoulos within the meaning of s 5(2) of the DD Act beyond those first few weeks by failing to formally agree to Mr Tropoulos working part time, perhaps indefinitely. Mr Tropoulos stated during the hearing, for example:
Go over to the next paragraph, paragraph (b), commercial litigation. If you're in a three-week commercial trial in the commercial list of the Supreme Court or in the - a commercial matter in this court, you can't possibly do that if you're on a part-time or fractional employment, can you?---It depends how the firm works and how people work with each other. I - I think people can work part-time. A lot of women work part-time, for instance, who have young children and are litigators - appear in this court and downstairs.
Well, do you agree that it would be more convenient to do conveyancing part-time than to do commercial litigation part-time?---Conveyancing still has a lot of demands upon it, too. It depends on the systems of the firm and what they need and how well people work as teams, what's being done. But I think that part-time can be - you can do part-time in any area of law.
(Transcript p 152 lln 23-35)
177 An important point to note at this stage is that, at all material times, Mr Tropoulos claims he sought a graduated return to work - namely hours fewer than full time, graduating back to full time. It does not appear that it was ever contemplated by either Journey Lawyers or Mr Tropoulos that he return to work permanently on a part-time basis.
178 In any event, Journey Lawyers pleaded that accommodating Mr Tropoulos' request to work fractional days would impose an unjustifiable hardship on the firm within the meaning of s 21B of the DD Act.
179 In determining whether a hardship that would be imposed on the alleged discriminator would be unjustifiable, s 11 of the DD Act, requires that all relevant circumstances of the particular case be taken into account. Relevantly for present purposes, this is defined by s 11(1) to include:
the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
the effect of the disability of any person concerned;
the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; and
the availability of financial and other assistance to the first person;
180 The onus lies on Journey Lawyers to establish "unjustifiable hardship": s 11(2).
181 The evidence before me indicates that lawyers specialising in family law can effectively work part-time. This was clear from the evidence of Ms Manderson, and indeed may be inferred from the preparedness of Journey Lawyers to accommodate Mr Tropoulos in respect of alternate days of work.
182 However Journey Lawyers pleaded that the practice of family law is generally not conducive to part-time or fractional employment comprising less than minimum acceptable working hours because:
in most courts and tribunals there is only limited scope for listing matters on a date and time which is suitable to a part-time or fractional employee;
major litigious matters often take more than one day;
even for litigious matters which are not expected to take more than one day, preparation for a hearing generally requires the availability of the relevant legal practitioner in the lead-up to the hearing;
family law practitioners need to regularly participate in court proceedings to stay in touch with the practice and jurisprudence of family law courts; and
part-time or fractional employment is not compatible with the reasonable expectations of clients that they will, for example, have ongoing access to the legal practitioner handling their file, particularly where urgent or unforeseen exigencies cause concern to the client.
183 Mr Galvin gave evidence supporting this position. In particular, in his affidavit dated 10 October 2017 Mr Galvin deposed that it would not be suitable for his firm to have legal practitioners part time because:
(a) When a family law application is filed the Court almost always allocates a court date without consultation with the law firm.
(b) If there is an interim hearing then the lawyer usually spends several hours a day on the day before the interim hearing preparing for the Court hearing as my employed lawyers are required to usually do their own advocacy and not brief Counsel for interim matters.
(c) Interim Court hearings can involve the lawyers spending whole days at Court because if a matter does not get on before 1.00pm then those matters are adjourned to 2.15pm and may be heard late in the afternoon, therefore the proposal of the Applicant working just in the mornings would have meant that his clients would face the prospect of a lawyer who is not known to him or her taking over the case. This new lawyer would not know the case nor have prepared for the Court hearing. This would be unprofessional and not meet the client's reasonable expectations. Our policy is that the Journey clients have the full attention of their lawyer during the interim hearing day.
(d) As to conciliation conferences, clients expect their lawyers be well prepared for a conciliation conference and after the mediation they contact their lawyer to go over facts or provide up to date information the day before a conference.
(e) The conferences often go on for several hours, sometimes all day, so from 9.00am to 5.30pm or even later. The clients expect their lawyer to be with them advocating them and supporting them especially in final stages of a mediation when often difficult concessions are being made by clients and where their lawyer, who has full knowledge of their case, can be there to guide them.
(f) It would be completely unacceptable for clients to be unable to have their lawyer with them for the whole day.
184 Mr Galvin deposed that Mr Tropoulos' proposal of working mornings only would mean he could not take on a client whose matter could end up in mediation or litigation, and that eliminates nearly all family law clients.
185 Ms Manderson gave the following evidence during cross-examination at the hearing:
All right. You see, in paragraph 19, it says this:
It has been and remains a common feature of family law clients that they find themselves frequently for the first time in their lives in circumstances, firstly, of heightened emotional vulnerability.
Now, you would agree with me that family law is not the only aspect of law where clients may have a heightened emotional vulnerability?---I would certainly agree that that's the case, but I think the extent is very different in family law.
Okay. Extent in what - the severity or the number?---Both really. For example, I deal with a number of dispute matters that are not family law. They don't have the heightened emotional sense in it that family law does.
All right?---It's a vastly different type of practice.
Have you had any experience with, for example, workplace bullying claims?---Yes, I have.
Would you not agree that that is a - an area where there would be heightened vulnerability?---There certainly is heightened - - -
Sorry. Heightened emotional vulnerability?---There certainly is heightened emotional vulnerability to a degree, but I don't think it falls into the same category as family law.
HER HONOUR: Can I ask why not?---Your Honour, frequently in terms of family law, we're dealing with much closer relationships. Invariably, when people come to see a family lawyer, their partnership with their spouse has broken down. They're under a great degree of stress. When family lawyers are talking to clients, they're often asking about the most personal and detailed account of their lives that they will ever get. I appreciate and I've had experience with workplace bullying matters, particularly where they involve sexual harassment, that have come close, but when you're talking to a client who has experienced rape from their partner, for example, it - it's not in the same category.
Thank you.
(Transcript pp 312-313)
186 Mr Tropoulos submitted that, taking into account the relevant daily time summaries, there did not appear to be any suggestion advanced by Journey Lawyers that the billable time worked by Mr Tropoulos could not have been worked on a half-day.
187 I am satisfied that, as a general proposition, it is possible for a lawyer practising family law to work part-time. However I am also satisfied that it may not be convenient for a law firm conducting such a practice to engage lawyers to work fractions of working days, even on a temporary basis, given the needs of family law clients, and in particular the fact that the stresses on family law clients are such that it is highly desirable that lawyers be available during business hours on the days they are in the office. Whether Mr Tropoulos worked the required billable hours during a half-day period is not to the point.
188 I also note Mr Galvin's evidence as to the overheads incurred by Journey Lawyers. In particular I note the following evidence of Mr Galvin:
28. It was clear that his performance was significantly affected and the figures indicated he was performing at one tenth of his previous capacity. From a financial perspective, his lack of performance was severely affecting Journey financially.
29. At the same time, Journey was still covering the Applicant's wages and the other fixed overheads relating to providing the support necessary to a full time lawyer such as rent, support staff and other outlays. In the financial year 2015/2016, the expenses of Journey including wages was $1,894,684. The number of lawyers can vary but at the time there were nominally nine lawyers. Based on our overheads, each lawyer costs on average $210,520 per annum. After adjusting for their salaries, the average cost of support for lawyers each year is between $80,000 and $100,000 per annum. Therefore, over a four month period the cost of support for lawyers is between $25,000 and $35,000. This is in addition to their wages.
30. As a firm we adopt a "three times rule" for pay and performance. This means a lawyer is expected to bring in three times their salary. In the Applicant's case, based on his salary of $125,000, he should have brought in $375,000 and for the period September to December 2015, he would have been expected to bring in one third of $125,000, so on a 5 day fortnight which he was effectively working, he should have brought in $20,000 at least. He brought in only $11,607.00.
31. During the period 19 October 2015 to 4 December 2015, we paid the Applicant:
Gross wages $7,582
Annual Leave $1,121
Personal Leave (sick leave) $ 528
Superannuation $ 877
TOTAL $10,108
This information is from the company's MYOB pay records.
….
33. However, in the long term, I could not continue to suffer detriment at my office once it became apparent that the second attempted return to work had failed.
189 I note that Journey Lawyers is not a large law firm. Circumstances may be different for a larger private firm, or a government department, with greater resources, however it is the prospect of unjustifiable hardship to Journey Lawyers that is in question in this case. I accept Mr Galvin's evidence as credible, and find that the financial strain to the firm in respect of its overheads, including salary, payable in respect of Mr Tropoulos in the event that he worked fractions of days, constituted an unjustifiable hardship to Journey Lawyers within the meaning of s 11 of the DD Act.
190 For all of these reasons I am satisfied that Journey Lawyers did not fail to make, or propose to make, reasonable adjustments for Mr Tropoulos by failing to arrange for him to return to work on the basis of half-days, five days per week, either initially on his return to work or at a later point during his return to work.
191 However even if Journey Lawyers had failed to make, or failed to propose to make, reasonable adjustments for Mr Tropoulos in these terms, I would not find this aspect of Mr Tropoulos' claim to be substantiated. This is because I am not satisfied that the effect of the failure would have been that he was treated less favourably than a person without the disability would be treated in circumstances that were not materially different.
192 Assuming that an alleged discriminator did not make, or proposed not to make, reasonable adjustments for a person, "discrimination" within the meaning of s 5 of the DD Act requires that the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different (s 5(2)(b)).
193 Mr Tropoulos submitted that the phrase "less favourable treatment" invites comparison between the treatment that he received and that which may have been received by another person, and that the person to be compared with (the comparator) need not be an actual person but can be an hypothetical person.
194 In Watts, Mortimer J observed:
250. In the circumstances of this case then, the comparator must be a person without a psychological condition of the kind suffered by Ms Watts. There is no reason in principle why an appropriate comparator in a given case might not be a person with a different disability. There may well be circumstances where the absence of reasonable adjustments means people with certain kinds of disabilities are treated less favourably than persons with other kinds of disabilities: it would not advance the purpose of the legislation for such circumstances to be outside the protection otherwise contemplated by the DDA…
251. One of the difficulties with the comparators suggested by both parties, and indeed many of the arguments on other aspects of unlawful discrimination by both parties, is they ignore what I consider to be a critical fact: namely, that Ms Watts was not away from the workplace when what in my opinion was the act of discrimination occurred. She was in the workplace, performing alternative and modified duties for Mr Schell. This is not, in my opinion, a "return to work" case at all. It is about a return to an employee's contracted position.
252. In my opinion, for the circumstances here to be "not materially different", as s 5(2)(b) requires, the (hypothetical) comparator Australia Post employee must be in the circumstances facing Ms Watts in approximately February 2010. That is, she was at work, performing modified or restricted duties in another part of Australia Post's business, performing well and to her supervisor's satisfaction. She was not in her contracted role as bid manager, and had not been for some time. In order for the circumstances to be "not materially different", the comparator must, in my opinion, be performing modified or restricted duties because of an injury found to be work related. Like Ms Watts, the comparator will have a long and good performance record with Australia Post and will be willing to return to her position as bid manager. Like Ms Watts, there will be no evidence to suggest that the comparator will ultimately be unable to return to her position as bid manager.
253. Where there was no apparent difficulty with the employee continuing (at least for some period) in the modified or restricted duties, and no suggestion the person would ultimately be unable to return to her position as bid manager, would Australia Post have required such an employee instead to provide further medical information setting out whether and how that employee could return, substantively straight away, to the full-time position as bid manager for which she was employed? That is, effectively, what Ms Scott-Brown required of Ms Watts in and from February 2010. Would Australia Post have directed such an employee to take leave if the information was not provided?
254. In my opinion the answer to these questions is "no". That is because Australia Post would, I infer, have continued to deal with that employee on the basis of rehabilitating her from her work-related injury and effecting a transition back to her position as bid manager. For example, in my opinion, if a bid manager had a back injury which was work related but the employee was back at work on modified duties, I find Australia Post would have let that employee remain at work and transition back to a bid manager position.
255. Without the adjustments being made for her, Ms Watts's psychological condition meant she could not return to a full-time position as bid manager in February 2010, when Australia Post (through Ms Scott-Brown) first raised the matter of her returning to this position, nor by 18 May 2010 when Australia Post directed her to remove herself from the workplace and go on leave. This outcome, for Ms Watts, was less favourable than a comparator employee.
195 Mr Tropoulos submitted that the appropriate comparator in his case was an employee, entitled to receive workers' compensation, in respect of whom an employer had obligations under s 228 of the WCR Act. Section 228 requires the employer of a worker who has sustained an injury to take all reasonable steps to assist or provide the worker with rehabilitation for the period for which the worker is entitled to compensation. Further, Mr Tropoulos submitted that the rehabilitation must be of a suitable standard as prescribed under a regulation, namely s 116 of the WCR Regulations which refers in turn to guidelines made by the Regulator for the purpose of the section.
196 In Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2013) 217 CLR 92 the High Court considered relevant aspects of the DD Act, including the concept of "less favourable treatment". I note in particular the following observation of McHugh and Kirby JJ at [130]:
Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment. And loss of the Act's protection would not be limited to such dramatic cases as the blind and amputees. Suppose a person suffering from dyslexia is refused employment on the ground of difficulties with spelling but the difficulties could be largely overcome by using a computer with a spell checker. The proper comparator is not a person without the disability who cannot spell. Section 5(2) of the Act requires the comparison to be between a comparator without the disability who can spell and the dyslexic person who can spell with the aid of a computer that has a spell checker. When that comparison is made the employer will be shown to have breached the Act unless it can make out a case of unjustifiable hardship as defined by s 11 of the Act.
(Emphasis added.)
197 Further, Gummow, Hayne and Heydon JJ said:
222. It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
223. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
224. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
198 As the Full Court subsequently explained in Forbes v Australian Federal Police [2004] FCAFC 95 at [51], referring to Purvis:
By contrast, 'disability discrimination legislation necessarily focuses upon a criterion of admitted difference' (at 180 [199]). Hence the need for comparisons to be made with another person or group of persons 'with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different" or "disabled" or "disadvantaged"' (at 180 [200]).
199 While it may have been appropriate in Watts, I do not accept Mr Tropoulos' submission that the appropriate comparator in this case was an employee in respect of whom Journey Lawyers had obligations under the WCR Act. A major point of distinction between this case and Watts was that the applicant in Watts had suffered a disability following an injury arising in the workplace, namely a psychological injury as a result of an incident concerning her non-selection for a leadership training program offered by Australia Post, which led to her lodging a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for compensation. In such circumstances it is not surprising that Mortimer J found an appropriate comparator to be an employee in respect of whom the employer had workplace obligations.
200 In this case it is clear that Mr Tropoulos was not suffering a work-related injury. I am not persuaded to simply accept Mr Tropoulos' allegation that his underlying disability was "brought on or exacerbated by work-related circumstances" such that the appropriate comparator is the hypothetical employee suffering from a workplace injury. Indeed, if there were substance to this aspect of Mr Tropoulos' complaint it would have been expected that he would have pursued a claim for such compensation.
201 In my view, a more appropriate hypothetical comparator in this case is an employee undertaking professional duties who experiences a condition such that they are unable to work full-time for a limited period of time pending resumption of full-time duties. I identify this comparator in circumstances where Mr Tropoulos has consistently stated that his complaint was the failure of Journey Lawyers to allow him to properly transition back into full time work. The condition experienced by the hypothetical comparator is not the same disability as that experienced by Mr Tropoulos - it could include for example recovery from a physical illness; it might not be a disability at all but rather be someone returning from leave whose family circumstances are such that they are unable to work full time for a period. A similar approach was taken by Bell J in Collier v Austin Health [2011] VSC 344; (2011) 36 VR 1 in respect of a complaint under the Equal Opportunity Act 1995 (Vic), where his Honour concluded at [110], in respect of an applicant with the disability of bipolar disorder:
… the correct interpretation of the provisions is that the proper comparator in the present case is a worker with a different disability to the particular disability which the complainant has, who (like the complainant) is fit, willing and able to return to graduated work and who is otherwise in the same or similar circumstances.
202 The comparator in this case does however entail circumstances where the employee requires a graduated return to work. Once this comparator is identified it is plain from the evidence that Journey Lawyers did not treat Mr Tropoulos less favourably than a person without his disability would be treated in circumstances that were not materially different.
203 First, Mr Tropoulos was unable to identify any examples of more favourable treatment to other employees of Journey Lawyers - rather he simply said he believed he had been "singled out". I note for example the following excerpt from the transcript:
MR MORRIS: When this pleading was delivered, did you believe the allegation to be true, that the firm would have provided other employees with a graduated return to work program?---Yes.
And what was the basis for that belief?---Belief.
Yes. What was the basis for it?---Belief.
Just imagination?---No, belief.
Belief must be based on reason?---Well, it's - - -
What are your reasons?---Well, on reason, but not imagination.
Okay. Well, what are the reasons for thinking that they would have done it for someone else but not for you?---Well, I know they were very scared of female employees. They did everything .....
So you're saying now that there were some female employees who were allowed to return to work on half days?---No, I'm saying that they would - that they would have made adjustments and assisted.
Are you serious? Are you seriously suggesting that this was a get Steve Tropoulos - - -?---No, I'm not saying that.
- - - exercise?---I'm not saying that. I'm saying that they - I - they - I think they would have helped other people return to work. I think the point here - - -
But don't you agree that the firm went out of their way to assist you both on the first return to work, although that only lasted for one day, and the second return to work, and you were extremely grateful for everything they did to try and help you?---I was grateful. I said that because I was scared of losing my job. I was very ashamed of being depressed, sir.
Do you accept that they went out of their way to help you?---They helped.
They did everything that could reasonably be asked of them - - -?---No.
- - - to help?--- Not everything, no.
You've got no basis at all, have you? No basis whatsoever for thinking that they would have treated another employee better than you?---I think they would have treated another employee better.
Which one?---All of them.
All of them? All apart from you? So it was a get Steve Tropoulos exercise, was it?---Possibly.
Sorry?---Possibly.
Possibly. And what do you think the motive would have been for that?---I don't know. A letter on 24 February demoting me.
Yes. No, we will come to that. We will come to that. Just focusing on this for a moment. What makes you think that you were singled out as the one that would be treated badly?---Because I was depressed.
I see. Do you think they've got an aversion about depression?---Yes, I do.
You do?---We're here.
No, we're here because you've sued?---Are we?
Yes. Do you have some trouble understanding that? That you're the one that commenced these proceedings?---I know I'm the one that commenced these proceedings.
Yes. All right. Now going back to what you allege to be my client's discrimination, can you offer to the court any rational explanation for thinking that the treatment you received was worse than the treatment that any other employee of Journey would have received in this - - -?---No, I can't.
You can't. So it is just imagination, is it?---I didn't say that.
Well, if you can't offer any rational explanation for it, where does it come from? What does that gesture mean?---What gesture?
The gesture you made when I asked you that question. Do you have an answer for it?---I don't have an answer. I'm just listening.
Well, your function here is to answer my questions. Not just to listen to them?---But you weren't asking a question.
Yes, I did. If you don't have a rational basis for that belief, why isn't it just imagination?---I guess it could be imagination.
Well, you agree you cannot give any rational basis for thinking that you were singled out for your treatment?---I have my reasons.
You have your reasons. Okay. Well, what are they?---I've told you. I think that they would have assisted other people.
No, you've said that they would have assisted every other member of staff except from you?---It's a gut feeling.
A gut feeling. And what's that based on?---Imagination.
Okay.
(Transcript pp 125-127)
204 Second, and more particularly, Mr Tropoulos did not identify any instances of employees of Journey Lawyers who were treated more favourably by Journey Lawyers in circumstances that were not materially different. No employees were, for example, identified, who had worked half-days for the firm under any circumstances - at best Mr Tropoulos said that "there are people that work part-time" (transcript p 143 ln 6), and he thought "all areas could be part-time" (transcript p 152 lln 1-2). He also conceded that the manner in which courts and tribunals listed matters, and the duration of some litigation, limited the scope for listing matters on a date and at a time which was suitable to a part-time or fractional employee (transcript p153 lln 36-47).
205 Third, no positive case was put to Mr Galvin of Journey Lawyers' treatment of a person without the disability to support a contention that Mr Tropoulos was, in circumstances that were not materially different, treated less favourably.
206 In my view, Mr Tropoulos' claim that Journey Lawyers discriminated against him within the meaning of s 5(2) of the DD Act by failing to allow him to work half-days five days per week on his return to work is not substantiated.