In what circumstances can an employee with a gambling addiction
accused of theft bring a discrimination claim? The recent case of
Hinder v Salvation Army (NSW) Property Trust (No. 3)
 NSWCATAD 16 sheds some light on this issue. There are two
1. Is there any evidence to show a connection between the theft
and the gambling addiction?
2. Is gambling addiction a disability under discrimination
In the case, the Applicant alleged she was discriminated at work
on the grounds of a persistent depressive disorder that manifested
in the form of a pathological gambling addiction. The Applicant was
employed as a shop assistant by the Salvation Army. She had
provided her employer with a document outlining her previous
struggle with gambling (and theft) and her ongoing recovery
The Applicant was suspended from her position pending an
investigation and immediately resigned. The investigation related
to customer complaints and a failure to follow directions. The
Applicant later became aware that various complaints of theft had
been made against her, and she contended she was treated less
favourably than another person on the ground of her disability
Reasoning of the Tribunal
The Tribunal could not find any evidence of discrimination
during or after the disciplinary process. Even if the alleged
misappropriation were contemplated by the decision maker, there was
no evidence to show a connection between the misappropriation and
the Applicant's gambling addiction. In other words, the
Tribunal could not infer the Applicant's gambling played a role
in the disciplinary process. Further, there was no evidence of the
Applicant gambling during the course of her employment. On the
contrary, it appeared the problem had resolved. The Tribunal was
therefore not satisfied the Applicant suffered persistent
depressive disorder at the relevant time or that it manifested in
Further, there was no relevant case law determinative of whether
a gambling addiction constituted disability. The medical experts
were in dispute as to whether gambling could constitute an
"addiction." The Tribunal did not feel it necessary to
determine whether a persistent depressive disorder, problem
gambling or a gambling addiction constituted a disability for the
purpose of the Act.
A Similar Case
This case is also similar to the decision of State of
Victoria (The Office Public Prosecutions) v Grant  FCAFC
184 in which the Applicant suffered a long term anxiety condition
with excessive consumption of alcohol and bouts of depression.
After a series of allegations of misconduct were made and
substantiated, the Applicant's employment was terminated. The
Applicant argued he was terminated on the basis of his mental
illness, rather than the misconduct, in that his condition
manifested itself through his misconduct. The Full Federal Court
found that medical evidence did not expressly or impliedly link the
misconduct to the illness, so the Court could not conclude the two
were inextricably linked. The close relationship between the
adverse action and the alleged prohibited reasoning did not mean
the two could not be separated.
It follows that in cases where applicants seek to allege that
misconduct was a manifestation of a medical condition they will
have to produce medical evidence to show that the medical condition
caused the misconduct or was a manifestation of it. Decision-makers
in such circumstances should also be careful that they discipline
the employee solely because of the misconduct and not any medical
condition, or symptoms thereof. Further, the Courts have not yet
determined whether a gambling addiction constitutes a disability
for the purposes of discriminations laws.
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.
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An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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