- The Victorian Civil and Administrative Tribunal will soon determine if a gambling or other addiction is an impairment.
In a recent decision in Victoria, McDougall v Kimberley-Clark Australia Pty Ltd  VCAT 1563, a Tribunal was asked to consider whether a gambling addiction constituted an impairment under Victorian's anti-discrimination legislation. The employee had claimed that she had been discriminated against on the basis of impairment, when her employer denied her salary continuance after relocating from Melbourne to Perth to allegedly avoid Victoria's gaming machines.
Ms McDougall had been an employee of Kimberly-Clark Australia Pty Ltd in Melbourne since October 1985. In November 2001, Ms McDougall's GP commenced treating her for depression and an addiction to gambling.
In February 2002, Ms McDougall did not attend work and without prior notice to her employer moved to Perth. The reason given for the move was that it was easier for her to avoid gaming machines in Western Australia where they were only found in one location. During this time Ms McDougall took paid annual leave, paid long service leave and paid sick leave until her entitlements ran out.
In March 2002, Ms McDougall commenced receiving treatment from a Perth psychiatrist Dr Tannenbaum who wrote to Kimberly-Clark stating that Ms McDougall would be unfit for work for two weeks and recommended or requested that she be transferred to Kimberly-Clark's Perth operations. Kimberly-Clark informed Dr Tannenbaum that a transfer could not be considered because there were no jobs available in Perth.
In April 2002, Ms McDougall sought access to the Kimberly-Clark's salary continuance programme which was designed to assist employees who were disabled for a period of time. The three requirements to access to the salary continuance plan were that the relevant employee was:
- unable to be employed by the company in her own or similar position;
- not engaged in any occupation; and
- under the regular care and attendance of a doctor.
Ms McDougall was examined by a medical practitioner and was subsequently denied the salary continuance. The reason given was that from a clinical and psychiatric point of view there was no intrinsic reason why Ms McDougall could not work in Melbourne. Therefore, there was no intrinsic reason why she was unable to be employed in her own or similar position.
On 29 March 2004, Ms McDougall returned to work in Melbourne and in September 2005 filed a complaint with the Equal Opportunity Commission which was subsequently referred to the Victorian Civil and Administrative Tribunal. Ms McDougall's claimed that she had been indirectly discriminated against on the basis of her impairment (that is, her apparent gambling addiction) in the area of employment. The particular instance of discrimination complained of was the company's refusal to grant Ms McDougall salary continuance.
Kimberly-Clark sought to strike out the proceeding under section 75 of the Victorian Civil and Administrative Tribunal Act 1995 (Vic) on the basis that it was frivolous, vexatious, misconceived or lacking in substance or was otherwise an abuse of process.
The strike-out application was made before Senior Member Megay who considered two main issues:
- whether Ms McDougall had, at the relevant time, an "impairment"; and
- whether the complaint of indirect discrimination frivolous, vexatious, misconceived or lacking in substance.
Gambling as an impairment
Ms McDougall argued that her gambling addition was an "impairment" under section 4(d)(i) of the Equal Opportunity Act 1995 which defines "impairment" to mean:
(a) "a total or partial loss of a bodily function;
(b) the presence in the body or organisms that may cause disease;
(c) total or partial loss of a part of the body;
(d) malfunction of a part of the body, including –
(i) a mental psychological disease of disorder;
(ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder;
(e) malformation or disfigurement of a part of the body."
Ms McDougall filed a report from Dr Tannenbaum stating that she had multiple features of pathological gambling with associated major depression and anxiety disorder and fulfilled the diagnostic criteria for pathological gambling. However, Dr Tannenbaum's report contained nothing to indicate when this condition manifested itself and when and if it ceased.
In contrast, Kimberly-Clarke argued that gambling per se did not fall within the definition of "impairment" as it was not a malfunction of a part of the body including a mental or psychological disorder, but rather was an activity.
Senior Member Megay held that at any hearing of this matter, the Tribunal would have to be satisfied that Ms McDougall suffered from a gambling addiction, that it was a malfunction of a part of the body being a mental or psychological disease or disorder, and that the gambling addiction existed at 4 April 2003. While Dr Tannenbaum's report did not give rise to an inescapable conclusion that Ms McDougall had an impairment, or when it manifested or ceased, Senior Member Megay stated that it seems possible that Ms McDougall with appropriate additional medical evidence could support her claim that she has an impairment.
Frivolous, vexatious, misconceived or lacking in substance?
In order to succeed, Ms McDougall would be required to show that she had been the victim of indirect discrimination. In summary, Ms McDougall would need to demonstrate that Kimberly-Clark imposed, or proposed to impose, a requirement, condition or practice on Ms McDougall (in this case, the requirement was working in Victoria):
- that as a person with a gambling addiction, she did not or could not comply with; and
- that a higher proportion of people without a gambling addiction, or with a different attribute, did or could comply with; and
- that it was not reasonable.
Senior Member Megay considered these issues and raised a number of questions which would need to be dealt with by the parties through evidence, including:
- who the "comparator group" would be and whether its members could comply with the requirement to work in Victoria;
- clarifying whether a condition or requirement (ie. working in Victoria) had actually been imposed on Ms McDougall and if so, whether it was it imposed by Kimberly-Clark;
- whether, on medical evidence (if the existence of a condition could be established) the complainant was unable, because of her impairment, to work in Victoria and whether the existence of numerous gambling machines found around Victoria is, as a matter of medical science, a sufficient inhibitor of recovery to make her tenure in Victoria dangerous to her health.
Despite the problems with Ms McDougall's claim Senior Member Megay was not satisfied that the case was obviously unsustainable in fact or in law or bound to fail.
The whole of Ms McDougall's evidence was not before the Tribunal and there was a "real possibility" that Ms McDougall could, with amplification of her evidence from suitably qualified medical practitioners, bring herself within the impairment definition contained in the Equal Opportunity Act. Similarly, the matters of the events which preceded and followed Ms McDougall's move to Perth needed to be elucidated by Ms McDougall and Kimberly-Clark and the issue of whether a condition was imposed, who imposed it and other related issues would need to be the subject of evidence.
The matter has now been set down for a three day hearing on 17 October 2006.
Employers (in Victoria in particular) should follow the outcome of this case. If gambling addiction is found to be an "impairment" under the Equal Opportunity Act then this may have wider ranging implications involving the treatment of employees who have a gambling or other type of addiction.
Thanks to Amelia Jane-Davis for her help in writing this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.