By David Bates

As discussed on last week’s show on Switzer TV, the NSW Civil and Administrative Tribunal (NCAT) has recently given permission for a person to argue that their gambling problem amounts to a recognised disability for the purposes of Australian discrimination law.

In this particular case, the employee was accused of stealing money, which they say is a symptom directly associated with their disability.

If this argument is ultimately upheld, it will mean conduct related to the disability – in this case the theft of employer funds to finance the gambling addiction – would be ‘protected’.

Put another way, it would mean an employer who dismisses a problem gambler because they stole money from the workplace would potentially face a claim for unlawful, disability-related discrimination.

Australian employees are, of course, already protected from discrimination in the workplace. Under the current laws, an employee cannot be ‘treated less favourably’ because of a ‘protected personal attribute’.

These ‘attributes’ vary from state-to-state because the anti-discrimination legislation is different in every jurisdiction. However, universally protected attributes include a person’s race, age, gender, religion or belief, sexual orientation and, of course, any recognised disability.

Where an employee (or potential employee) has a recognised disability, employers are under a general obligation to make so-called ‘reasonable adjustments’ to ‘accommodate’ that disability. However, the employee must still be able to perform the ‘inherent requirements of the job’.

These laws are relatively well-settled here in Australia, and this makes the potential outcome of the ‘gambling discrimination’ case all the more fascinating.

If the applicant is ultimately successful, other addiction-related conditions are also likely to qualify as ‘recognised disabilities’ for the purposes of Australian discrimination laws.

As this case is currently before the tribunal, I don’t intend to make any comment whatsoever in relation to its merits. Instead, I simply recommend Australian employers pay close attention to what is potentially the most important discrimination-related claim in a decade.