What are my employer’s obligations in the consultation process for Reasonable Adjustments?

In Short

A show cause process is a final opportunity for an employee to respond to an employer’s preliminary decision to terminate. Prior to initiating a show cause process, it is paramount the parties have engaged in consultation centred around facilitation and cooperation, before considering termination. During this conversation, the employer should mitigate against any biases, conflicts of interest, or predetermined findings, as the purpose is to reach a collaborative solution. Following consultation, an employer may initiative a show cause, where the employee has a final opportunity to demonstrate why their employment should not be terminated.  An employer should not utilise a show cause process to satisfy their consultation process for reasonable adjustments.

Norton v Boroondara CC [2026] VCAT 761

The recent decision of Norton v Boroondara CC [2026] VCAT 761, has offered valuable insight into the obligations owed by employers during the show cause process. Mr Horton was subjected to termination by his employer, Boroondara CC following three show cause letters. The grounds for his termination stem from Mr Horton’s ‘residuary vulnerability to headaches and neck or back pain which constitute an attribute of ‘disability’, which he suffered due to a workplace injury.[1] BoroondaraCC justified their decision to terminate Mr Horton on the basis that they did not believe there were vehicles in their fleet he could safely drive.

Mr Horton was required by Council to commence driving a Hyundai i30 Hatch as part of his duties as a Local Law Officer. Mr Horton requested an alternative vehicle, similar to his previous H1 iLoad Van, with Council regularly approving similar requests to accommodate employee preferences, especially if the employee experienced discomfort.[2]

Between August and September 2022, Mr Horton drove the Hyundai i30 Hatch and experienced difficulties sitting for long periods in the vehicle due to neck pain and headaches, requiring him to adopt an awkward posture by leaning forward, maintaining his neck in an extended position and found his symptoms were noticeable towards the end of his working day and progressively became worse over the duration.[3]

On 7 March 2024, 30 April 2024 and 24 September 2024, Mr Horton received three show cause letters, which stated Council had formed a preliminary view that Mr Horton could not perform the inherent requirements of his role and his employment should cease, as he could not drive any vehicle Council can reasonably provide.[4] Prior to initiating the show cause letters, Mr Horton had not been invited to consult with his employer about any reasonable adjustments to his role.

The Tribunal Decision

The Tribunal found Boroondara City Council’s requests for Mr Norton to participate in a show cause process on three occasions was unreasonable as the respondent did not show they made any real attempt to negotiate, consult or find an accommodation for the applicant’s attribute.[5] In this case, the Tribunal noted that the Council mentioning other vehicles in show cause letters were “…introduced entirely as ‘unilateral decision-making’ and do not assist to show that the respondent made any real attempt to negotiate.[6]

To be engaged in meaningful negotiations, the process of attaining and delivering reasonable adjustments cannot be the product of unilateral decision making. The negotiations must be a clear product of proper consultation by the parties, considering advice and appropriate knowledge of the genuine and reasonable requirements of the job.[7]

A protracted show cause process does necessarily correlate to an adequate, just or fair process. The Council undertook a show cause process lasting approximately 15 months. The Tribunal noted that despite meeting with Mr Horton and considering the medical evidence he provided, the Council had ample information about Mr Horton’s attributes which could have formed part of a range of consultative processes available to the Council, rather than insisting on two additional show cause processes.[8] Instead, Mr Horton was required to undergo a medical assessment by Dr Turnball at the request of Council, with the assessment failing to demonstrate the characteristics of an employer willing to make accommodations for its disabled employee.[9]

The Tribunal held issuing show cause letters which threaten termination to be “unfathomable” and could not form part of a meaningful negotiation or consultation process.[10] In addition, by Council determining a range of vehicles referenced in the show cause letter as unsuitable, prior to providing Mr Horton an opportunity to test drive the vehicle, demonstrated their inability to attempt to find him an alternative vehicle.[11]

Key Takeaways

A show cause process with respect to reasonable adjustments occurs following a transparent, cooperative consultation to attempt to reach a beneficial solution for both parties. The length of the process is not necessarily determinative of fairness, with the nature of the consultation between the parties indicative of their willingness to negotiate. For a meaningful consultation process to occur, the employer should not engage in unilateral decision making, as the negotiations must demonstrate proper consultation and consideration of the genuine and reasonable requirements of the role.

[1] Norton v Boroondara CC [2026] VCAT 761, [1].

[2] Ibid, [11].

[3] Ibid, [12].

[4] Ibid, [21], [26], [30].

[5] Ibid, [170].

[6] Ibid.

[7] n (1), [167] citing citing Muller v Toll Transport Pty Ltd (2) (Human Rights) [2014] VCAT 472at [22].

[8] n (1), [160].

[9] Ibid.

[10] Ibid, [173].

[11] Ibid, [183].