Lay Your Bets!

Beware the Gambling Bug

(Source: Employers Advisor published by Employers First)

Bets are being laid on the outcome of a case in which a sales rep is suing her employer for failing to accommodate her gambling addiction. The case could have important consequences for employers.

What’s it all about?

The sales rep is making a claim of indirect discrimination under the disability laws of Victoria by the large health care product manufacturer on the basis of her addiction to poker machines.

She has given evidence before a tribunal that she gambled away most of her assets in the hotels surrounding her workplace. She claims her employer should be held responsible because: they refused her request for a transfer to Western Australia (where the poker machine situation is more controlled)

they failed to continue her salary under a staff disability program while she went to Western Australia to recover.

She claims she recovered in WA, once she was able to get away from the pokies. Her employer says there was no medical reason she could not keep on working in Victoria. The case is continuing.

So what?

The case threatens to extend the reach of the disability discrimination laws (at Federal and State level), with the possibility that employers will be held liable if they treat their employees differently should they be suffering from an addiction to gambling. This issue has arisen in recent years with the problem of drug addiction as a disability.

What happened in the past?

In 2002, the Federal Court considered the case of a drug addict who was excluded from a club because of his behaviour. He sued on the basis that his drug dependence was a “disorder, illness or disease” and therefore a disability under the Disability Discrimination Act. The court agreed the club acted illegally because the man's “opioid dependence” was a disability.

The NSW Anti-Discrimination Act was amended in April 2002 because of the above case. Cases of “opioid dependence” were specifically excluded so that employees addicted to illegal drugs could not claim they had a disability at work.

The Federal Government followed the NSW lead and initiated amendments to the Disability Discrimination Act to make sure addiction to illegal drugs was exempted from the definition of a “disability”. However, these amendments lapsed for technical reasons and were never enacted.

In mid-2003 a Sydney Airport worker trying to overcome a heroin addiction became hooked on the methadone his doctors prescribed for him. His addiction became known at work and he claimed he was unfairly treated by his colleagues who feared they could contract illnesses from exposure to him. He sued on the basis that his employer failed to do anything about his “disability”. The NSW Administrative Decisions Tribunal agreed that Sydney Airport acted unlawfully and that methadone addiction was a “disability” that had specifically been excluded from the 2002 amendments to the Anti-Discrimination Act.

What now?

The current Victorian claim about poker machine addiction will re-open the “disability” debate. It is not unlikely that the tribunal will declare the womans addiction to be a disability, and that her employer treated her in a discriminatory way. The prospect of thousands of claims by gamblers would follow.

Short of the tribunal rejecting her claim, what is required urgently is for:

State Governments to introduce legislation specifically excluding all forms of gambling addiction from the definition of “disability”.

The Federal Government to follow suit with the Commonwealth’s Disability Discrimination Act and specify that an addiction to any form of gambling does not give rise to employer obligations.

The Federal Government to re-activate the lapsed amendments to the federal discrimination laws to exempt employers from liability for addictions to illegal drugs.

Contact Employers First™ if you need advice on how to protect yourself against claims with well-drafted workplace drug and alcohol policies.

Comment from the editor: The GIS(NSW) has made contact Employers First with regards this article in the hope of offering constructive support and advice for employers with regard developing appropriate workplace policies relating to gambling risks and behaviour. This follows on form our success in developing a workplace policy and training with Shoalhaven City Council in 2002.

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