Tribunal finds that employer did not discriminate against employee with alleged gambling addiction8 February 2017 | Employer's Liability
A tribunal has rejected a claim by a Salvation Army employee that the employer's decision to suspend her amounted to disability discrimination at work because of her Persistent Depressive Disorder (PDD) arising out of her alleged pathological gambling addiction.
Whether an employer discriminated against and employee on the grounds of an alleged gambling addiction
In 2004 Ms Hinder commenced employment at a Salvation Army store as a shop assistant. In 2005 she was promoted to the position of store supervisor.
There were no issues with Ms Hinder’s employment. In early January 2011 new managers were appointed to assume responsibility for the store. Soon after their appointment, Ms Hinder provided a copy of a document that she had prepared titled “Kath’s Story” to one of the managers. This document told the story of her gambling addiction and theft, and how she was charged and subsequently served a Community Service Order. It also detailed her progress and ongoing recovery through Gamblers Anonymous.
Soon after assuming responsibility for the store, one of the managers organised a risk management review of the store, which was conducted by the Salvation Army’s Organisational Risk Director. His risk management report identified various “very high to extreme risk exposures” including:
- smoking at the entrance of the shop;
- allegations of staff theft;
- problems with shoplifting and illegal dumping of items at the store; and
- cleaning of shop floors and tidying up of the store before opening to the public each day.
The risk management report recommended that:
- a further OHS inspection be arranged to check Ms Hinder’s progress and compliance with OHS matters given her position as store supervisor;
- a performance review take place as soon as practicable to determine if Ms Hinder was complying with changing operational requirements and KPI’s; and
- disciplinary action should be considered for Ms Hinder’s poor performance given the lack of safety and unsatisfactory state of the store.
At the time that the report was prepared, the Risk Director was unaware of previous instances of allegations of theft by employees against Ms Hinder (as well as counter allegations by her of theft by other employees). He was also not aware of any problems that Ms Hinder may have had in relation to gambling, or any alleged disability.
In February 2011, after receiving the risk management report, the managers of the store suspended Ms Hinder on full pay until further notice in order that an investigation could be conducted arising out of customer complaints and her failure to follow their directions. Upon receiving the suspension letter, Ms Hinder resigned.
Four years later, Ms Hinder obtained copies of the Risk Director’s handwritten notes relating to two telephone conversations that he had with the manager of the store in February 2011. One of those notes contained references to volunteers and third parties alleging that they had seen Ms Hinder take money from the till on a number of occasions. The other note referred to Ms Hinder being stood down on full pay pending investigation into a number of matters, including overall poor performance, OHS risks and misappropriation.
The contents of these notes led Ms Hinder to believe that at the time that the Salvation Army informed her that she was being suspended that it did so because of her “gambling addiction”. She therefore pursued a discrimination complaint.
The store managers and the Salvation Army denied discriminating against Ms Hinder on the ground of her alleged disability. They presented evidence showing that there were interpersonal differences between Ms Hinder and the new store managers, that Ms Hinder refused to comply with their reasonable and lawful directions and that the decision to suspend her in order to investigate the allegations of poor performance was unrelated to her alleged disability. They also argued that Ms Hinder’s alleged “gambling addiction” did not constitute a disability for the purposes of the Anti-Discrimination Act 1997 (NSW) (Act).
The Decision at Trial
Although the tribunal accepted that the Risk Director’s file notes indicated that one of the matters of concern at the time of the suspension related to alleged misappropriation, it found that even if those allegations were in the manager’s mind at the time of the suspension, there was no evidence of any link between the alleged misappropriation and gambling - unless the tribunal were to accept that a propensity to steal was a characteristic of a person with a “gambling addiction”. However, the tribunal did not accept that this was the case.
The tribunal found that the hotel had not followed its own policies prior to suspending Ms Hinder (which required it to issue her with warnings before suspending her). However, this was because of the managers’ inexperience as they had not managed a store before and were not familiar with the relevant policies.
The tribunal was not satisfied that Ms Hinder had a gambling problem at the time, or that she had PDD. It considered that just because a person may be a problem gambler or have PDD that it was not an automatic characteristic of such a person to have a propensity to steal.
Ms Hinder was unable to provide any case law to support her argument that gambling addiction constituted a disability for the purposes of the Act and the tribunal left this issue open for decision by another court at a future time.
As a result, the tribunal dismissed Ms Hinder’s claim of disability discrimination.
Implications for you
This decision demonstrates the importance of employers following their own disciplinary policies and procedures and maintaining a clear paper trail setting out their reasons for taking such action. This is particularly important where the employee in question may have a disability.
The issue of whether a “gambling addiction” constitutes a disability for discrimination purposes remains unclear. Until such time as the matter is determined by the courts, prudent employers should nevertheless treat this condition as if it is a disability and act accordingly.
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