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Tribunal allows discrimination claim to be heard three years after the act

December 04, 2015

The New South Wales Civil and Administrative Tribunal has allowed an ex-employee to proceed with a claim of discrimination, after documents were obtained with enough evidence for the complainant to make a case.

According to the employee, who worked for the Salvation Army as a store supervisor, she was unfairly
suspended on the basis of her problem gambling and/or obsessive-compulsive disorder. Her main argument therefore was that the employer had breached the Anti-Discrimination Act (NSW), by dismissing her employment on the ground of disability.

The employer denied this allegation and maintained that her dismissal arose due to customer complaints and her consistent failure to follow reasonable directions. They also argued that the employee resigned, without waiting for an investigation to be performed.

Originally, it was held by the Anti-Discrimination Board that this complaint was lacking in substance. owever, three years later the employee had obtained some important documents, which revealed that her suspension was based on a false accusation of stealing in order to support her gambling addiction.

Generally speaking, there is a time limitation on discrimination claims of 1 year from the date of the alleged
act. Nevertheless, as in this case, the Commissioner may use its discretion to hear a complaint after this
period has elapsed.

In the eyes of the Tribunal, it is arguable that the employee’s gambling problem is a “disability” as it affects
her thought processes, perception of reality, emotions and/or judgment. The tendency to steal money is
potentially a characteristic of those with gambling issues and thus, the employer may have committed
discrimination on grounds associated with her disability.

“While it is by no means certain that Ms Hinder will succeed in substantiating her complaint, it cannot be said that it lacks substance. … it is at least arguable that there was a discriminatory reason for suspending Ms Powell… [and] in my view, it is fair and just in all the circumstances for it to proceed.”

The full text of this case can be read here.

A successful discrimination claim will attract an award of general damages, which is usually dependent upon what the applicant can prove. However, in a recent case, the court had demonstrated a willingness to increase this amount in order to compensate for the applicant’s pain, suffering and loss of enjoyment of life. A total of $100,000 was awarded to the employee and thus it is important for employers to take reasonable steps which prevent discrimination in the workplace.

If you have any further queries or wish to talk to someone about the law on discrimination, please call the NRA Hotline on 1800 RETAIL (738 245).

Liability limited by a scheme approved under professional standards legislation.

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