Hinder v The Salvation Army (New South Wales) Property Trust [2015] NSWCATAD 239

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hinder v The Salvation Army (New South Wales) Property Trust [2015] NSWCATAD 239 Hearing dates: 22 September 2015 Decision date: 18 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: Leave is granted for the applicant's complaint to proceed. Catchwords: ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - whether fair and just for complaint to proceed – assessment of merits of complaint of disability discrimination against employer – issues include whether gambling addiction is a disability – whether tendency to steal money is a characteristic appertaining to people who have a gambling addiction – facts necessary to establish an inference that there has been a breach of the Anti-Discrimination Act 1977 (NSW) Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Category: Procedural and other rulings Parties: Kathleen Hinder (Applicant) The Salvation Army (NSW) Property Trust (Respondent) Representation: Solicitors: J Wright (Agent for Applicant) Salvos Legal Limited (Respondent) File Number(s): 1510440

reasons for decision

Introduction 1. Ms Hinder has applied for permission for her complaint of disability discrimination against The Salvation Army (New South Wales) Property Trust (The Salvation Army) to go ahead. The complaint is that she was suspended from employment in 2011 on the ground of her disability (problem gambling) in breach of the Anti-Discrimination Act 1977 (NSW). 2. On 11 June 2015, the President of the Anti-Discrimination Board declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96.