EMPLOYER GROUPS recently called on the state, territory and federal governments to amend discrimination, health and safety and workers’ compensation laws so that a worker’s gambling addiction cannot be classed as a disability or impairment giving rise to employer obligations.
The call came after the Victorian Civil and Administrative Tribunal ruled that a gambling addiction can be an impairment, which can give rise to a claim of indirect discrimination under disability discrimination laws.
The Tribunal refused to strike out a worker’s claim that, as a result of an employer refusing to maintain their salary when they moved from Melbourne to Perth to avoid Victoria’s gaming machines, the worker had been discriminated against because of a disability.
The Tribunal said that “whether or not the complainant was unable, because of her impairment, to work in Victoria and whether the existence of numerous gaming machines sprinkled around the state of Victoria is, as a matter of medical science, a sufficient inhibitor of recovery to make her tenure in Victoria dangerous to her health”.
In refusing to dismiss the case, McDougall v Kimberley-Clark Aust Pty Ltd, the Tribunal also noted the possibility that, with appropriate medical evidence, the complainant can support her claim that she has an impairment.
“This decision highlights the unacceptable breadth of current discrimination laws, and in particular, the concept of indirect discrimination,” said Peter Hendy, chief executive of the Australian Chamber of Commerce and Industry (ACCI).
In 2000, the Federal Court also ruled that a heroin addiction was a “disorder, illness or disease” that would give rise to employer liabilities under disability discrimination law. New South Wales disability discrimination laws were subsequently amended to reverse this impact, but moves to amend Commonwealth laws were blocked in the Senate.
“Now it seems possible that a gambling addiction can fall under the same law, creating obligations on employers,” Hendy said.
“These examples illustrate how well-intentioned laws are being used to transfer individual responsibilities onto employers where they are beyond the control of a business.”