Managing an employee with an injury or disability often involves medical evidence, consultation and difficult decisions about whether the employee can continue to perform their role.
A recent VCAT decision is a reminder that even a thorough process can still be legally flawed if it focuses on the wrong question.
In Norton v Boroondara CC [2026] VCAT 761, VCAT found that Boroondara City Council discriminated against a long-serving employee after terminating his employment on the basis that he could not safely drive the vehicles it was prepared to provide.
The background
Mr Norton was a long-serving Local Laws Officer who continued to experience migraines and neck and back pain following a workplace injury.
His role required driving. He had been able to use a Hyundai H1 iLoad van, but reported that driving a Hyundai i30 hatch aggravated his symptoms.
When the Council decided to move its Local Laws Officers to i30s, Mr Norton requested an alternative vehicle.
Over the following 15 months, the Council obtained medical evidence, ergonomic assessments and an independent medical examination and conducted three show cause processes.
It ultimately concluded that Mr Norton could not safely drive a vehicle it could reasonably provide and terminated his employment.
What was the genuine requirement of the role?
VCAT accepted that holding a driver’s licence and being able to drive a vehicle were genuine and reasonable requirements of Mr Norton’s role.
But it rejected the proposition that he needed to be able to drive an i30—or only vehicles within the Council’s existing fleet.
The relevant question was not whether Mr Norton could drive the Council’s preferred vehicle. It was whether he could perform the genuine requirements of the role if reasonable adjustments were made.
VCAT found that the Council approached the issue too narrowly and wrongly concluded that there were no reasonable adjustments available.
A thorough process can still ask the wrong question
The Council’s process was extensive. It obtained medical information, ergonomic assessments, an independent medical examination and conducted three show cause processes over approximately 15 months.
VCAT’s concern was not that the Council had done too little. It was that the Council framed the issue too narrowly: whether Mr Norton could safely drive an i30 or another vehicle within the Council’s preferred fleet arrangements.
VCAT considered the proper question was broader: whether Mr Norton could perform the genuine requirements of the role if reasonable adjustments were made, including by providing or trialling a different vehicle.
That meant the reasonable adjustment obligation required more than confirming the limits of the existing fleet. It required the Council to properly consider whether a different vehicle was a reasonable adjustment that would allow Mr Norton to continue performing the role.
Show cause is not consultation
The Council also relied on its three show cause processes as evidence of consultation.
VCAT rejected that approach.
Senior Member Anita Smith described the suggestion that show cause letters threatening termination could form part of meaningful consultation about reasonable adjustments as “rather chilling”.
A show cause process and consultation about reasonable adjustments serve different purposes.
Consultation about reasonable adjustments should explore options to keep the employee in employment. A show cause process usually occurs later, when the employer is considering an adverse decision and asks the employee to respond.
Procedural fairness before termination is not a substitute for meaningful consultation about reasonable adjustments.
What about cost?
Mr Norton had suggested a larger vehicle, including a Toyota RAV4, but the Council considered it too expensive.
The estimated additional leasing cost was approximately $10,000 to $15,000 over four years.
VCAT considered that cost relatively minor in the context of the Council’s financial position, particularly when compared with the costs already incurred in assessments, an independent medical examination and litigation.
This does not mean every requested adjustment must be accepted. However, if an employer relies on cost to reject an adjustment, it should properly assess and substantiate the financial and operational impact.
The outcome
VCAT found that the Council had unlawfully discriminated against Mr Norton under the Equal Opportunity Act 2010 (Vic).
The Tribunal assessed compensation at approximately $901,000, including past and future loss of income and $35,000 for non-economic loss. It also left open the possibility of reinstatement.
Key lessons for employers
Norton concerned Victorian equal opportunity legislation, but the broader lessons are relevant to employers managing illness, injury and disability more generally:
- Identify the genuine requirements of the role rather than confusing them with the employer’s preferred way of performing the work
- Genuinely explore reasonable adjustments, including alternatives outside existing arrangements
- Consider practical trials where they may provide better evidence than theoretical assessments
- Assess the real cost and operational impact of proposed adjustments before rejecting them
- Keep consultation and show cause processes distinct. Procedural fairness at the end of a process does not replace meaningful consultation earlier in it.
The key takeaway from Norton is not simply that employers should do more. It is that a detailed process must be directed to the right issue: whether reasonable adjustments, including adjustments outside the employer’s preferred arrangements, would allow the employee to perform the genuine requirements of the role.
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