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Is gambling addiction a disability?

Imagine you suspected that your employee was stealing from you. Now imagine what you might think if, when confronted, they told you that their theft was caused by a gambling addiction and it would be discriminatory to suspend or terminate them.

A situation not far removed from this confronted the Salvation Army in a recent matter before the NSW Civil and Administrative Tribunal.

In those proceedings, new managers took over a Salvation Army store. The applicant, who worked at the store, voluntarily disclosed to the managers her history of gambling addiction. Shortly after, the Salvation Army investigated the store when complaints were received about occupational health and safety issues such as smoking, cleanliness and where some items were kept. There was some suggestion that the applicant had been stealing from the store, although this was never put to her. The applicant was suspended on full pay during the investigation. She then resigned.

When the applicant later found out about the allegations of theft, she commenced proceedings against the Salvation Army alleging she had been discriminated against because of her history with gambling addiction.

Fortunately for the Salvation Army, the Tribunal decided that the Salvation Army had responded to the complaints about the store in a manner that was not dependent on or due to the applicant’s gambling addiction. Because the Salvation Army had treated the applicant the same way that would have treated any other employee in those circumstances, the Tribunal decided that the applicant had not been discriminated against.

This decision is a good example of how record keeping is important when dealing with employee issues. In reaching its decision, the Tribunal relied heavily on file notes prepared by the Salvation Army’s HR and management staff. Those notes referred to the allegations of theft but made no mention of the applicant’s gambling history. The Tribunal placed significant weight on that fact.

Unfortunately, the Tribunal’s finding meant that it didn’t need to answer the difficult question of whether problem gambling was an addiction in a medical sense or a disability in a legal sense. Dependence on illegal drugs has previously been held to be a disability, but no such decision has yet been made in relation to gambling. The Tribunal left that question for a future case.

FWO offers employment law services to both employees and employers. If you have an employment-related matter, please contact FWO’s employment lawyer Jay Clowes on (02) 6650 7016.

 

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