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Date: 14 February 2017

Gambling addiction and theft – can the two be linked?

Mark Curran, Partner, Kaden Boriss Brisbane

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) [2017] NSWCATAD 16 sheds some light on this issue. There are two central issues:
1. Is there any evidence to show a connection between the theft and the gambling addiction?
2. Is gambling addiction a disability under discrimination laws?

The Facts

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 (gambling addiction).

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 gambling behaviour.

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 [2014] 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.

Conclusion

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.

For more information on this case or advice on a discrimination matter please contact Mark Curran on (07) 3013 2751.

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