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Is gambling addiction a disability?

A current case in the NSWCAT may provide the answer.

Background:

With Responsible Gambling Awareness Week on 25-31 May, it is interesting to note that the NSW Civil and Administrative Tribunal  is currently considering  whether gambling addiction can be a disability under the NSW Anti-Discrimination Act (ADA). 

The Tribunal has granted leave for the case in question to proceed, as it found that the applicant may have an argument. Under the ADA, disability includes ‘a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour’.

The applicant was stood down from her job working in a Salvation Army store. She was originally told that she was suspended because of customer complaints and some minor performance issues. Rather than go through an investigation process, she resigned. She later received documents which suggested that the real reason for her suspension was because her supervisor alleged that she stole money from the store. 

When her supervisor started work in the store, the applicant had given him a document entitled which outlined her gambling problem. In fact she had been investigated previously for theft, but the claims were not substantiated. 

She now had evidence that her supervisor had told the Salvos’ risk assessor that staff had seen her take money from the till. She provided the Tribunal with references and a statutory declaration from staff members denying that they had ever seen her take money and attesting to her honesty and strong work ethic. 

The applicant claimed that her supervisor had made up the allegations because the organisation’s policies did not allow for her suspension otherwise. 

To prove her complaint, the applicant will have to show:

  • that she has a ‘disability’ within the meaning of the Act.
  • that suspending her on full pay was subjecting her to a detriment
  • in similar circumstances, the employer would not have suspended a person who did not have a gambling problem
  • one of the reasons for her suspension was her disability, or a characteristic that is generally imputed to people who have that disability – for example, as the tribunal said, that ’a tendency to steal money is a characteristic that is generally imputed to people who have a gambling problem’. 

Results:​

Without the guidance of earlier decisions, it is hard to say what evidence will be needed to persuade the Tribunal that the applicant’s gambling problem is a disability. She has a psychologist’s report stating that she sought counselling for depression and anxiety, and she had a long term problem with gambling. She said her symptoms were exacerbated by work stress. ​

Hinder v The Salvation Army (New South Wales) Property Trust [2015]. NSWCATAD 239, 18/11/15.  

​​​​​​Back to May 2016 - Equal Times ​Newsletter​​​​

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