Hinder v The Salvation Army (NSW) Property Trust (No 3)

[2017] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Hinder v The Salvation Army (NSW) Property Trust (No 3) [2017] NSWCATAD 16
Hearing dates:	18 May 2016, 19 May 2016 and 18 July 2016
Date of orders:	13 January 2017
Decision date:	13 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Tibbey, Senior Member F Given, General Member
Decision:	(1) The claim of disability discrimination is dismissed. (2) Any party wishing to have the Tribunal consider costs is directed to notify the Tribunal of that within 21 days of the date of this decision and Directions will be made for submissions on the matter. Unless such application is made, there is no order as to costs.
Catchwords:	Disability discrimination – gambling addiction – employment
Legislation Cited:	Civil And Administrative Tribunal Act 2013 Anti-Discrimination Act, 1977
Cases Cited:	Purvis v New South Wales (2003) 217 CLR 92 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Sharma v Legal Aid (Queensland) [2002] FCAFC 196 Dutt v Central Coast Area Health Service [2002] NSWADT 133. McDougall v Kimberley-Clark Australia [2006] VCAT 2211 Thomson v Orica Australia (2002) 116 IR 186 Philip v State of NSW [2011] FMCA 308 Waterhouse v Bell (1991) 25 NSWLR 99 Walker v State of NSW [2003] NSWADT13 Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 Norrie v NSW Register of Births Deaths and Marriages [2013] NSWCA 145
Category:	Principal judgment
Parties:	Kathleen Hinder (Applicant) The Salvation Army (NSW) Property Trust (Respondent)
Representation:	Counsel: P Thew (Respondent) Solicitors: J Wright (as Agent for the Applicant) Salvos Legal Ltd t/a Salvos Legal (Respondent)
File Number(s):	1510440

REASONS FoR DECISION

1. This was a complaint of disability discrimination pursuant to Section and 49B(1) and 49D(2)(d) of the Anti-Discrimination Act ( ‘hereafter ‘the Act’).

2. The Applicant alleges that she was discriminated against at work on the ground of Persistent Depressive Disorder (‘PDD’) that manifested in the form of a pathological gambling addiction.

3. In order to establish this claim, the Applicant will need to prove on the balance of probabilities, that she was treated less favourably than a person without the gambling problem would have been treated in the same or similar circumstances.

4. The Applicant will also need to establish that a real reason, or a substantial reason for such differential treatment was the fact that has had, or was presumed to have the disability. There may also have been other reasons for the treatment, but, pursuant to Section 4A of the Act if one of the reasons for differential treatment was having what constitutes a disability under the Act, then discriminatory treatment, as proscribed under the Act, will be established.

5. Unless a gambling addiction or gambling problem is a “disability” for the purposes of the Act, there is no actionable discrimination, even if the real reason or one of the real reasons for the treatment received by the Applicant was the gambling problem.

6. Relevant sections of the Act are set out below.

What constitutes discrimination on the ground of disability

49B What constitutes discrimination on the ground of disability

(1) A person

("the perpetrator" ) discriminates against another person

("the aggrieved person" ) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

Discrimination against applicants and employees

49D Discrimination against applicants and employees

(3) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(4) It is unlawful for an employer to discriminate against an employee on the ground of dis ability:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

7. The Applicant alleges that she has a disability under the Act. The term “disability” is defined in s4 of the Act as follows:

"disability" means:

total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

the presence in a person’s body of organisms causing or capable of causing disease or illness, or

the malfunction, malformation or disfigurement of a part of a person’s body, or

a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

8. Section 4A of the Act provides that:

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

Background to these proceedings.

9. Ms Hinder (hereafter ‘the Applicant’ or Ms Hinder) was employed by the Salvation Army as a shop assistant at the Upper Blue Mountains Corps Family Store ( referred to hereafter as ‘the store’) from 20 April 2004, having completed 300 hours of a Community Service Order in working in the store in 2003. In 2005 she was promoted to Store Supervisor and held that position until she resigned.

10. In October 2010, allegations of theft were made anonymously against the Applicant but, upon investigation, were found to be without foundation.

11. In December 2010 there were allegations of theft made by the Applicant against other workers in the store.

12. In mid January 2011 Mr Jon Belmonte and Mrs Leah Belmonte, who were commissioned officers of the Salvation Army, assumed responsibility for the store, taking over from other Salvation Army officers with whom Ms Hinder had a good relationship. The Applicant was responsible to Mr Jon Belmonte and Mrs Leah Belmonte from the time they assumed responsibility for the store.

13. On 25 January 2011 Ms Hinder provided to Mr Belmonte a copy of a document authored by her, entitled “Kath’s story.” This document told the story of her past, including what she describes as a gambling addiction. As the Applicant’s Points of Claim state, “It detailed her struggle with gambling, including her previous struggle with gambling and theft and how she was charged and served her Community Service Order at the store. The story also detailed her progress and ongoing recovery through Gamblers Anonymous.”

14. Soon after assuming responsibility for the store, Mr Belmonte organised a risk management review that was conducted by Mr Ian Powell, the Organisational Risk Director for the Salvation Army. Mr Powell performed many such reviews for the Salvation Army in the course of his work.

15. Mr Powell’s report to Mr Belmonte, dated 14 February 2011, set out a number of areas where he saw “very high to extreme risk exposures” including the following:

• smoking in the entrance and near vicinity of the shop ( which he ordered was to cease, with a six meter exclusion area to be enforced and signposted);

• allegations of staff theft, problems with shoplifting, illegal dumping and public loitering (he requested installation of security cameras on the dock and donation area, furniture area, front door and cash registers with 24 hour surveillance recorded on the 500 GB hard drive for a period of three months);

• Shop floors to be cleaned, vacuumed, tidied and in order before opening to public each day (to be instituted immediately).

16. In relation to Ms Hinder, Mr Powell recommended that:

• A further OHS inspection should be arranged with Divisional HR Consultant in one month’s time to check store supervisor’s progress;

• Review performance of store supervisor as soon as practicable with changing requirements and key performance indicators necessary to take the store forward;

• Consider a disciplinary warning for poor performance commensurate with the lack of safety and very unsatisfactory state of the store.

17. The Tribunal accepts the evidence of Mr Powell that at the time of preparing his report of 14 February 2011 he was unaware of any particular allegation of theft made against Ms Hinder, or made by her against others in the shop, any problems she may have had in relation to gambling, any previous conviction or any alleged disability she may have had.

18. Mr Powell was aware of allegations of misappropriation by 16 February 2011, according to his file notes, but what sort of misappropriation was very much in issue in the proceedings.

19. On 16 February 2011 the Applicant was suspended from the position of store supervisor until further notice, on full salary. The reasons for the suspension were said to be customer complaints, failure to follow directions to vacuum and clean the shop daily and smoking in areas where smoking was not permitted, despite direction not to do so. The purpose of the suspension was said to be so that an investigation could be conducted. Upon receiving the letter of suspension Ms Hinder resigned.

20. In 2014 Ms Hinder came to see hand written notes of Mr Powell recording two telephone conversations between himself and Mr Belmonte on 16 and 17 February 2011, leading to these proceedings being instituted.

21. Mr Powell gave evidence that he took handwritten notes of the conversations contemporaneously and these were subsequently typed and read as follows:

16.02.11

Initial Phone Call from Jon Belmonte

Corps Office at Blue Mountains Corp

Captain Jon Belmonte notified me regarding problems at the store. The following persons had reported to Jon the following

Olive Wright volunteer – now at Goulburn Corp ( saw Kath Hinder take money in her bra – taken from till in 2010)

2. Lisa Woodbury (soldier at Katoomba) – also said she saw Kath Hinder take money from the till and place it discreetly on her person – and

3. David Lathan (volunteer) has seen her on a number of occasions take money from the till and place it in her pocket.

I recommended Jon worked with HR to assist with an investigation and any subsequent disciplinary matters (if allegations are substantiated)”.

A further file note dated 17.2.11 states:

“Jon Belmonte

UBMC – call.

Kath Hinder to be stood down (2 weeks - full pay) pending investigation of a no. of events.

-G.W HR Dept to assist by

Overall poor performance

State of the shop (OHS risks) and

Misappropriation matters.

………………………..

Kath Hinder has resigned prior to investigation .

Resignation accepted by HR.”

22. Regarding the events of 17 February, Mr Powell recorded in a typed file note that:

“Subsequently CO John Belmonte notified me that Ms Hinder was about to be stood down for two weeks on full pay pending an investigation of a number of events including the above. John was to be assisted by the Greater Western Division HR Department, regarding Ms Hinder’s overall poor job performance, the dangerous state of the store (OHS) and the misappropriation matters but elected to resign prior to any investigation taking place. Her resignation was accepted by HR.”

23. The Applicant alleges that some complaints against her were fabricated by Mr Belmonte. As part of her evidence Ms Hinder presented a statutory declaration from Ms Olive Wright denying making an allegation of theft against Ms Hinder. Ms Lisa Woodbury was also said by Ms Hinder to have denied having made such a complaint or accused her of theft.

24. The Applicant was suspended from her position on 15 February 2011 and resigned that day.

25. Ms Hinder argued that on the ground of her disability (a “gambling addiction”) she was treated less favourably by the Respondent than another person without the disability would have been in the same or circumstances that are not materially different.

26. The two elements which must be proven to substantiate a complaint of disability discrimination are “differential treatment” and “causation” ( Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5), ie that the Applicant was “treated less favourably” “on the ground of “ a disability as defined under the Act. These are considered in greater detail below.

Events preceding 16 February 2011

27. The Applicant had a close and amicable relationship with the Salvation Army officers preceding Mr Jon Belmonte and Ms Leah Belmonte, Mr Colin Young and Ms Kate Young. A comfortable professional relationship was in place between “the Youngs” and the Applicant and it did not appear that they had complaints about the way in which the Applicant ran the store. The relationship was also beyond the professional; the Applicant was personally close to them and they regarded each other as friends. The Applicant used to babysit their children and the spoke very highly of her.

28. When Mr and Ms Belmonte took over, on 17 January 2011, they may have had a different style and approach to management from Mr and Mrs Young. The Tribunal finds that the Applicant disagreed with some of their requirements, which may have differed from those of Mr and Ms Young. She made this known in various ways, which were interpreted as a failure by her to follow the directions of her superiors. There were early indicators that there were problems in the relationship between the Applicant and Mr and Mrs Belmonte.

29. Ms Belmonte outlines a discussion on 20 January 2011 that she had with the Applicant asking her to count the float with another person, not alone. On 27 January 2011 Ms Belmonte asked her not to have Community Service volunteers on the register. The Tribunal accepts that on both occasions Ms Hinder did not accept such direction.

30. Ms Belmonte also outlines an occasion on which she says that she heard her husband ask the Applicant to vacuum the store and she replied “you do it, the vacuum is out the back.” Mr Belmonte also refers to this incident in similar terms in his affidavit.

31. On another occasion Ms Belmonte states that Ms Hinder said words to the effect that:

32. “This is my store, You need to leave it and leave me alone to run it my way.”

33. Ms Belmonte’s evidence is that after several customer complaints about the alleged rudeness of the Applicant, on 3 February 2011 Ms Belmonte telephoned Ms Shalini Vuyyuru of the Human Resources section of the Salvation Army on 3 February 2011. She sought advice as to how to deal with these issues. Ms Vuyyuru suggested that Mr Belmonte ought to speak with Ms Hinder about the matters.

34. Mr Belmonte states in his affidavit that in his view the Applicant failed comply with his direction not to smoke within 6 meters of an air conditioning intake or doorway, not to smoke in front of the store, to vacuum the floor to shut the store early on 16 February and that in general she refused to accept his authority or that of his wife, although she was well aware that she was answerable to them.

35. The Tribunal accepts that there were a number of occasions on which there was conflict between Ms Hinder and Mr and Ms Belmonte leading up to 16 February 2011.

36. The Tribunal finds that conflicting personalities, expectations and differences in work styles were factors in the way in which the disciplinary process escalated, to the point that Ms Hinder resigned. These factors were not connected to disability discrimination.

Events of 16 February 2011

37. It is important to examine the events of the afternoon of 16 February 2011 in some detail as these are central to the claim of discrimination.

38. The Tribunal finds that a sequence of events occurred, as set out below.

39. Mr Belmonte had a telephone conversation with Mr Powell, a summary of which is set out in Mr Powell’s file note, set out above.

40. At approximately 2pm or 3pm on 16 February 2011 Ms Leah Belmonte advised Ms Hinder that Mr Jon Belmonte wanted to speak with her and asked her to close the shop early. Ms Hinder refused to do this.

41. Mr Belmonte then rang Ms Vuyyuru, who suggested that he suspend Ms Hinder until HR could arrange to speak with her about the issues. She assisted in drafting a letter of suspension to be read to Ms Hinder in interview ( ‘the suspension letter’).

42. Mr Belmonte asked her again to close the shop early. She refused to do so, so he told her that he wished to speak with her at 4.15pm (after the shop was closed).

43. Ms Hinder attended Mr Belmonte’s office at the store with Ms Belmonte present. Mr Belmonte began reading allegations of poor performance from ‘the suspension letter’. Mr Belmonte notified Ms Hinder that she was immediately suspended “until further notice” on full pay so that an investigation could be conducted. He asked her to sign the suspension letter, but she refused to do so. Ms Hinder then verbally resigned. The following day she sent a letter of resignation.

44. The suspension letter is annexed to the Affidavit of Mr Belmonte of 13 April 2016 as Annexure “F” and it is clear that there is no allegation of theft contained in it. Nor is there any reference to gambling: it refers to “two written complaints which I have brought to your attention concerning your attitude and demeanour towards persons in the Red Shield shop”, failure to vacuum in accordance with directions, smoking within 6 metres of store entry despite a verbal and written directions regarding this matter, and failure to follow other (unspecified) directions.

45. The Tribunal accepts that there were some complaints about the conduct of the Applicant leading up to 16 February 2011. Two of them were in writing, that of Christopher Dailey, undated, and one from Trudy Holzmann received on 28 January 2011. Both written complaints were annexed to the Affidavit of Mr Belmonte of 13 April 2016. Mr Dailey’s complaint had implications for the business because Mr Dailey stated that his work involved the disposal of the contents of houses and he directed goods towards the store, as well as introducing foreign students to the store as being a good place to shop. He alleged that the Applicant was rude and abrupt to him. A third complaint was from Salvation Army Captain Kayleen Morrice, who attended the store whilst not in uniform and complained about the conduct of the Applicant towards her. There were also the alleged oral complaints which were contested.

46. Ms Vuyyuru gave evidence that at the time she was consulted by Mr and Ms Belmonte she was unaware that the Applicant was said to have had a gambling problem. She gave evidence that the basis for her advice was occupational health and safety issues rather than any allegations of theft.

Analysis of Events of 16 February 2011

47. The Applicant relied upon the fact that on 25 January 2011 she had provided Mr Belmonte with a copy of “Kath’s story”, her own story of her journey in life dealing with problem gambling and how she had overcome that problem and argued that one of the reasons for the suspension was a false accusation that she had stolen money.

48. The evidence did not disclose that anything was said to the Applicant by Mr Belmonte, Ms Leah Belmonte or anyone else regarding gambling or theft playing any part in the disciplinary process set in place by Mr Belmonte.

49. Nor did Ms Hinder say anything to Mr Belmonte about gambling or theft in the disciplinary process.

50. The Tribunal accepts that the file notes of Mr Powell indicate that one of the matters of concern to Mr Belmonte at the time of the suspension on 16 February was alleged misappropriation even though such allegations were not raised or put to the Applicant during the disciplinary process.

51. However even if these allegations of misappropriation were in the mind of Mr Belmonte and formed one of the reasons for the suspension, so that an investigation of those allegations could occur, there is no evidence of any link to gambling, unless the Tribunal were to accept that a propensity to steal is a characteristic of a person with a “gambling addition” or a problem with gambling. For reasons set out below, the Tribunal does not accept that.

52. The Tribunal finds that there is no direct evidence of discriminatory treatment in word or conduct of the officers of the Respondent during the disciplinary process or after it.

53. Whilst it would have been distressing and uncomfortable for the Applicant to have been suspended, at no stage on 16 February or at any other time, did the Respondent ask for the resignation of the Applicant. Indeed prior to 2 March Ms Sue Thomas of the Salvation Army spoke with Ms Hinder and asked her to withdraw her resignation. She chose not to do so.

Meeting of 2 March 2011.

54. On 2 March the Respondent convened a meeting with the Applicant to discuss matters. Ms Sue Thomas, the Human Resource Manager for the Salvation Army, conducted a meeting with Ms Hinder and her representative Ms Jan Wright, present, along with Mr and Ms Belmont and Ms Vuyyuru. At that meeting the Respondent invited Ms Hinder to return to work, but she chose not to do so. Instead, she confirmed that she had resigned and wished to maintain that resignation. The evidence of Ms Thomas that the meeting lasted about 1.5 hours is accepted.

55. The Tribunal accepts that the meeting was probably quite difficult for the Applicant, whose evidence was that the “atmosphere” and tenor of the meeting did not encourage her to retract her resignation.

56. Ms Thomas states in evidence that the Applicant was paid in full for the period 16 February 2011 to 2 March 2011, when she confirmed that her resignation would stand.

57. The Tribunal finds that the Applicant made a choice to resign and was not required to do so.

Comparator

58. There was no actual comparator suggested by the Applicant for the purpose of determining whether the treatment she received was “less favourable” that that received by others in the same circumstances or in circumstances that were not materially different. As store supervisor, she was in a unique position in some ways, and there was no other staff member, as far as she was aware, who was directly comparable.

59. The Tribunal may then consider whether, measured against the treatment of a hypothetical comparator, the treatment the Applicant received was discriminatory.

60. The Applicant relied upon the general employment policies of the Respondent to establish the way in which a hypothetical comparator would have been treated. The policies, speak of warnings prior to suspension, for example. Ms Hinder did not receive a written warning prior to suspension.

61. The Tribunal finds that this was not because the Applicant was being treated less favourably due to a disability, but was attributable to the fact that Ms Vuyyuvu was fairly new to the organisation and Mr and Mrs Belmonte had not managed a store before (although Mr Belmonte had worked in one) so were not that familiar with the written employment policies of the Respondent. Thus discrimination was not the reason for any failure to issue a written warning prior to suspension.

62. There is no other evidence that the Applicant was treated less favourably than others against whom there were complaints of rudeness, having a poor manner with customers and failing to follow direction or even by comparison with others in relation to whom there were allegations of theft. The polices of the Respondent did provide for suspension in some circumstances, although there ought to have been written warnings unless there were matters of such significance that immediate suspension was warranted.

63. Without a relevant comparator or any direct evidence of discriminatory treatment, the Applicant bears the onus of proof in establishing that the Tribunal ought to draw inferences, on the basis of primary facts, that a gambling problem was at least one of the reasons for the way she was treated: Sharma v Legal Aid (Queensland) [2002] FCAFC 196; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

64. The Tribunal is unable, on the basis of the evidence, to infer that gambling played any role in the disciplinary process involving the Applicant.

65. Mr Belmonte had received a report from Mr Powell identifying significant issues at the Upper Blue Mountains Store, particularly occupational health and safety issues, such as smoking, cleanliness of the store and where some items were stored. Additionally, he had some complaints as to rudeness by the Applicant.

66. The Tribunal finds that when Mr Belmonte spoke to Ms Hinder about these matters, she was not very responsive. She was directed to attend a meeting after shop hours and reluctantly did so. The allegations put to her obviously offended her and, whilst she was only given a suspension with full salary pending inquiries, she chose to resign.

67. The Tribunal needs to consider whether one of the reasons for the meeting regarding suspension of the Applicant was related to Ms Hinder having previously had a gambling problem.

68. Unless the Tribunal so finds, then this claim cannot succeed on the facts of the matter as “differential treatment” would not be established. If the process of talking to the Applicant and issuing her with a suspension was one which Mr Belmonte would have undertaken with any store supervisor who reported to him where there were:

• complaints of rudeness to customers and

• issues of occupational health and safety

• allegedly failing to follow directions of a superior.

69. Even if there were, additionally, allegations of theft, and Mr Belmonte did not treat the Applicant less favourably than he would have treated any other person who reported to him with those disciplinary issues, then there was no disability discrimination as defined in the Act. That is so even though the Applicant may have a disability. (Purvis v New South Wales (2003) 217 CLR 92.)

70. The Tribunal has considered the notes of Mr Powell regarding his telephone conversation with Mr Belmonte (reproduced earlier in these reasons for decision). Whilst they refer to “misappropriation” ( which he said referred to the stealing of stock by the public) and also refer to specific oral complaints allegedly made to Mr Belmonte, they do not refer to the alleged gambling problem that Ms Hinder had in the past.

71. Mr Powell did recommend that Mr Belmonte work with HR in investigating the complaints that the Applicant may have stolen money. That is unexceptional. The significance of that file note for these proceedings is that it shows that those oral complaints were in the mind of Mr Belmonte on the day of the suspension, even though he did not refer to those matters in advising Mr Hinder of the suspension. Although Mr Powell indicated that he was unsure of the time sequence of the file notes, the Tribunal finds that the file note of 16 February was made on that date and that of 17 February was made on that date, as clearly appears on each of the file notes.

72. Nevertheless, there is no reference to gambling in Mr Powell’s notes. If there were complaints made about possible theft, it was appropriate and reasonable to investigate them. Unless there was found to be some substance to such complaints, there was no reason to put unsubstantiated reports to the Applicant during the suspension interview and arguably would have been premature to do so. There were other real issues to be dealt with in terms of the employment relationship between the Applicant and the Respondent. The unsubstantiated reports never amounted to any more than that, as they were never investigated. If they had been investigated and verified, then the Respondent could have raised them with the Applicant in the March 2011 meeting or referred them to the police. It did neither of these things but instead asked her to retract her resignation during the 2 March meeting. That is not the action of an employer who believes that an employee has stolen money.

73. The file notes of Mr Powell do not establish that there was any differential treatment of Ms Hinder due to or “on the ground of” disability discrimination.

74. Given these factual findings, that differential treatment has not been established, it is not necessary to make any finding as to whether the Applicant had a ‘disability’ within the meaning of the Act, but the Tribunal sets out matters relevant to that issue below.

Did the Applicant have a problem with gambling at the time of the events in question?

75. There is no evidence that the Applicant gambled whilst employed with the Respondent in 2010 or 2011, let alone that she had a gambling “problem” in 2010 or 2011, unless it is accepted that problem gambling is an addiction from which a sufferer can never be free. On the contrary, it appeared that she had, as set out in Kath’s Story, recognised that she had a problem and resolved and committed to managing it. There was no evidence before the Tribunal of any gambling behaviour whilst the Applicant worked at the store or any lapses in her resolve in 2010 or 2011.

76. The Tribunal is not satisfied that the Applicant had PDD at the relevant time or, if she did, that it manifested in any gambling behaviour at the relevant time that could have led to stealing. The clinical psychologist who treated the Applicant after the events the subject of these proceedings, Mr Chris Probets, conceded that he did not treat the Applicant for gambling addiction, he could not be sure how long the Applicant had had PDD, when it started and that he had not administered some of the screening tools available to assess a gambling disorder according to the DSM IV or V criteria between 2003 and 2011.

Is PDD a ‘disability’ within the meaning of the Act?

77. During the hearing and in subsequent submission by the parties, the Applicant was unable to point to any relevant case law where a gambling addiction had been found to constitute a disability for the purposes of the Act. The Respondent identified a Victorian case, McDougall v Kimberley-Clark Australia [2006] VCAT 2211 where the Applicant alleged that she suffered a gambling addiction, a claim which was not sustained on the facts (as in this case) and where no conclusive finding was made as to whether PDD or problem gambling or gambling addiction constituted a disability for the purposes of the equivalent section of s4 of the Act.

78. The Tribunal considered expert reports and heard evidence from Mr Chris Probets for the Applicant and Dr Rene Pols for the Respondent, both psychologists.

79. During the hearing there was a dispute between the two experts as to whether or not gambling was an “addiction”. For that reason, in these reasons for decision, the term PDD or ‘gambling problem’ rather than ‘gambling addiction’ is used in these reasons for decision, without any finding as to whether gambling is an addiction.

80. It is not necessary, given the factual findings in this case, to determine whether or not PDD, problem gambling or a gambling addiction constitute a ‘disability’ for the purposes of the Act. The state of scientific knowledge changes over time and it would be preferable to leave open, for decision at a future time, the question of whether PDD, problem gambling or a gambling addiction constitute a disability for the purposes of the Act. Such a decision could then be made on the basis of the state of scientific knowledge at that time, when a finding needs to be made.

Is a tendency to thieve a characteristic of problem gambling?

81. The case has been argued of the basis that a person with a gambling problem may have a greater likelihood than others to steal (ie that it is a characteristic of a person with a gambling problem that they have a greater propensity to steal than others). This is sometimes referred to as a “characteristics extension”, ie that as an extension of the definition of disability that one of the characteristics of a person closely with a gambling problem is a propensity to steal. That has not been established to the satisfaction of the Tribunal.

82. In order for the Tribunal to accept that, it would be necessary to find that such a characteristic was one which the vast majority of persons of that status have or are believed to have (Thomson v Orica Australia (2002) 116 IR 186 at [186]; Philip v State of NSW [2011] FMCA 308 at [95]; Waterhouse v Bell (1991) 25 NSWLR 99 at [115] and [117]; Walker v State of NSW [2003] NSWADT [45] – 47]; Tleyji v The Travel Spirit Group Pty Ltd [2005] NSWADT 294 at [114] – 115])

83. The proposition is not self evident. During the hearing Dr Pols rejected the proposition that illegal behaviour is necessarily a component of the behaviour of all people or the vast majority of people with problem gambling and disputed the evidence provided in support of the proposition by the Applicant.

84. It is certainly not common knowledge or a notorious fact of which ‘judicial notice’ could be taken (Norrie v NSW Register of Births Deaths and Marriages [2013] NSWCA 145 at [94], not reversed by the High Court on this point).

85. The Tribunal is not satisfied, on the evidence available to the Tribunal in this case that it is a characteristic of problem gamblers or those with PDD that they have a propensity to steal, even if, for the Applicant, the two were linked in her own life, leading to her community service order in 2003.

Conclusion

1. The claim of disability discrimination is dismissed.

2. Any party wishing to have the Tribunal consider costs is directed to notify the Tribunal of that within 21 days of the date of this decision and Directions will be made for submissions on the matter. Unless such application is made, there is no order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

13 January 2017 - Amended representation

Decision last updated: 13 January 2017