Salvation Army cleared of discrimination despite improper adherence to policy but case leaves open possibility that gambling addiction is a ‘disability’ under AHR laws

17 February 2017 Topics: Workplace relations and safety

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 [2015] NSWCATAD 239), the Tribunal  held that the employee’s gambling addiction may constitute a ‘disability’.

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 conviction.

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 ‘causation’.

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 written policies.

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 subsequently dismissed.



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