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In a recent decision, the Federal Court of Australia ('the Federal Court') has found that addiction to opioids, such as heroin, is a disability for the purposes of the Disability Discrimination Act 1992 (Cth) ('the DDA').
Facts
Mr Marsden ('Marsden') was a member of the Coffs Harbour & District Ex-Servicemen and Women's Memorial Club ('the Club'). Marsden was, and had been for some years, opioid dependent. He had been formerly addicted to heroin and at the time of his complaint had been a regular user of methadone for approximately seven years.
Marsden alleged that from late 1994 until November 1996 he had been the victim of a series of discriminatory acts by the Club and its staff members. The background to the complaint by Marsden is as follows
- a on 4 January 1995 Marsden was observed by the bar supervisor acting in a manner consistent with being intoxicated and was asked to leave the premises. When later counselled by the Club's Operations Manager, Marsden disclosed that he was opioid dependent and on a methadone program. He was told that being in the Club in "an affected condition" was not acceptable. Marsden claimed he was nauseated and fatigued (side effects of insufficient methadone) and was not intoxicated
- b on 12 June 1996 Marsden was reported to be unsteady on his feet, slurring his speech and under the influence of either alcohol or some other substance. Marsden was asked to leave the Club and did so. However he attempted to re-enter the Club shortly afterwards which resulted in his membership card being confiscated. Marsden claimed that he was under the influence of methadone
- c on 13 August 1996 a meeting of the Club's Judiciary Committee was held at which Marsden attended. The Committee was considering what action, if any, it would take following what it considered to be repeated incidents of unsatisfactory behaviour by Marsden. At the meeting it was resolved to reinstate Marsden's membership card and to issue a verbal waring to Marsden concerning his behaviour. The Committee recommended that due to Marsden's methadone consumption he not drink alcohol whilst on the Club's premises and Marsden agreed to this recommendation
- d on 16 August Marsden was reported to have consumed a glass of Bailey's Irish Cream, following which the Club wrote to Marsden advising him that while he was on medication he would be prohibited from purchasing alcohol at the Club
- e on 15 October 1996 Marsden was involved in a loud altercation with Club staff members. Marsden was observed to be under the effect of alcohol or some other substance and to be uncoordinated
- f on 12 November 1996 the Judiciary Committee held a further meeting to consider Marsden's behaviour whilst at the Club, in particular his conduct towards staff on 15 October 1996. Marsden chose not to attend this meeting, as he considered that the Club would not give him a fair hearing. The Committee decided to expel Marsden from the Club.
The claims
Following the Club's decision to expel him, Marsden brought a complaint under the DDA, claiming that the Club had discriminated against him on the ground of his opioid dependency by
- a denying him access to a benefit provided by the Club, namely the service of alcohol
- b subjecting him to detriments, namely disciplinary action by the Club's Judiciary Committee, refusal of service of alcohol and removal from the Club after a minor incident which did not warrant such action, and
- c depriving him of membership of the Club.
The decision
At first instance, it was found by the Inquiry Commissioner that the Club had not engaged in discriminatory conduct within the terms of the DDA. Due to this finding the Commissioner did not have to determine whether opioid dependency was a 'disability' for the purposes of the DDA. However, he expressed the initial view that while at first blush opioid dependency may appear to be a "disorder, illness or disease" as defined in the DDA, such a construction would give rise to difficulties in the administration of the DDA and that as the alleged disability was adequately treated and relieved by methadone, it could not be said that Marsden was under a disability.
On appeal to the Federal Court, the Court set aside the decision of the Inquiry Commissioner, finding that the Inquiry Commissioner had erred in law on several counts. In relation to the meaning of a 'disability' under the DDA, the Court held that opioid dependency was a disability as that term is defined in the DDA. The Court held that on a plain and ordinary meaning, a condition of addiction such as Marsden's was a "disorder, illness or disease" and that there was nothing in the DDA to suggest that the phrase should not be given its ordinary meaning. Further, the Federal Court held that those words could encompass a medical condition the symptoms of which can be, and are, alleviated by treatment and that this did not result in the individual no longer having the disability. The Court referred the matter back to the Tribunal to be reconsidered in light of its findings.
Implications for employers
Whilst this decision has been heralded as ground breaking, it is unlikely to come as a surprise to many that an addictive medical condition may be considered a disease, illness or disorder and, as such, falls within the definition of disability under the DDA. However, the decision does highlight that employers must not treat employees less favourably because of an addiction condition and must ensure that decisions concerning the employee's employment are based on the employee's ability to perform the inherent requirements of his or her position and not either wholly or in part, on the employee's disability.
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