An employee of the Salvation Army argued that her
gambling addiction was a 'disability' and that she was
treated less favourably by her employer than another person without
the disability in the same disciplinary circumstances in regard to
a disciplinary process.
In an earlier interlocutory application brought by the Salvation
Army (Hinder v The Salvation Army (New South Wales) Property
Trust  NSWCATAD 239), the Tribunal held that the
employee's gambling addiction may constitute a
Leading up to the employee's suspension, a new male and
female team had assumed responsibility for the store, taking over
from the previous Salvation Army officers with whom the employee
had a 'good relationship'. Soon after this changeover the
employee had provided the male manager with a copy of a document
authored by her and entitled 'Kath's Story', which
detailed the story of her past gambling addiction.
Not long after assuming responsibility for the store, the male
manager organised a risk management review. Following this an
Organisational Risk Director submitted a report on the store
setting out a number of areas where he saw 'very high to
extreme risk exposures'. Some such areas included; smoking at
the door, alleged staff theft and public loitering. In relation to
the employee specifically, the Risk Director recommended a
'disciplinary warning for poor performance'. The Tribunal
accepted that the Risk Director was unaware of any problems the
employee may have had in relation to gambling or any previous
Two days after the submission of the report the employee was
suspended. The purpose was said to be so that an investigation
could be conducted.
The employee brought a complaint under the
Anti-Discrimination Act 1977 (NSW). The two elements that
needed to be proven to substantiate the claim of disability
discrimination were 'differential treatment' and
At final hearing, the Tribunal found that 'conflicting
personalities, expectations and differences in work styles were
factors in the way in which the disciplinary process
escalated'. Such factors included the employee's
disapproval of her new superiors' management style and approach
and her failure to accept direction from the new managers.
The Tribunal found that there was 'no direct evidence of
discriminatory treatment in word or conduct of the officers of the
employer during the disciplinary process or after it' and that
at no stage did they ask for the employee's resignation. The
Tribunal found the employee made the choice to resign and 'was
not required to do so'.
When determining whether the treatment of the employee was
discriminatory, the general employment policies of the employer
were considered and found to contain a reference to warnings that
were suggested prior to suspension. The employee did not receive
any warnings, although the Tribunal found this was not because she
was 'being treated less favourably due to a disability, but was
attributable to the fact' that the HR practitioner was new to
the organisation and the new managers were not familiar with these
The Tribunal was unable to infer that the employee's past
gambling addiction played any role in the disciplinary process.
Further, the Tribunal held it was not necessary to make a finding
as to whether this addiction was considered a 'disability'
under the Anti-Discrimination Act. This was left open for
a decision at a future time given the changing state of
'scientific knowledge' on the topic.
The employee's claim of disability discrimination was
Cooper Grace Ward is a leading Australian law firm based in
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