Gambling at work – can an employer be held liable?

The introduction of smart phones and tablets has created an easily accessible portal for gamblers to place bets whenever and wherever they want, including at work and during working hours. The Australian Bureau of Statistics found that 3.3 million Victorians participate in gambling annually and while the common purpose may be recreational, research has proven that gambling addictions are prevalent in our society and has a range of negative social, financial and physical effects.[1]

The Occupational Health and Safety Act ensures that every employer in Victoria has a duty of care to their employees to provide and maintain a safe working environment free from health risks. Approximately 35,600 Victorian adults experience problem gambling and 122,500 Victorian adults are at a moderate risk of problem gambling, making the work environment a vulnerable location for gambling to occur.[2]

It is an employer’s responsibility to create policies to regulate the potential misuse of recreational activities in the workplace. Many companies have drug and alcohol policies which expressly prohibit consumption or provide guidance and resources to assist in rehabilitation. The statistics and awareness regarding gambling addictions are widespread and employers should recognise the likeliness of employee gambling disorders.

In the case of Hinder v The Salvation Army,[3] Ms Hinder was suspended with pay due to customer complaints. Rather than accept the suspension, Ms Hinder resigned and later claimed that she was discriminated on the basis of a gambling addiction. Her claim was unsuccessful due to the lack of evidence suggesting that gambling is a disability and that she was terminated due to her gambling addiction. However, employers should be mindful of the implications of gambling and when reasonable, attempt to rehabilitate rather than punish.

By creating a written policy that addresses gambling in the workplace, employees are aware of the prohibition and able to reach out for assistance.

When creating a policy regarding gambling in the workplace, it is important to include:

• a clear definition of gambling or gambling behaviour that will be prohibited;
• an outline of the difference between legal and illegal gambling;
• an explanation of how gambling would affect workplace productivity; and
• help lines that are available for gambling rehabilitation.

[1] Griffths, M. (2010). Asian National Adolescent Gambling Surveys: Methodological Issues, Protocols and Advice. Asian Journal of Gambling Issues and Public Health, 1(1), p.4.

[2] “How Gambling In Victoria Is Changing Over Time”, Victorian Responsible Gambling Foundation (Webpage, 2019) https://responsiblegambling.vic.gov.au/resources/gambling-victoria/how-gambling-victoria-changing-over-time/

[3] Hinder v The Salvation Army (NSW) Property Trust (No 3) [2017] NSWCATAD 16 (13 January 2017)