Workplace rights

Concerns about discrimination

Being discriminated against at work because you have a disability is against the law under the Commonwealth Disability Discrimination Act 1992 and Fair Work Act 2009, as well as state and territory legislation. Cancer is considered a disability under these laws. Disability discrimination in the workplace may occur in different ways:

Direct discrimination – This is when you are treated less fairly than someone without cancer. For example, an employer denies you a promotion, demotes you to a lower-paid job, refuses to hire you or dismisses you for a reason related to having cancer, when they would not have done these things to an employee who does not have cancer.

Indirect discrimination – This is when a policy, rule or practice that seems fair actually disadvantages people who can’t follow it because they have cancer. For example, a requirement for staff to stand while serving customers might indirectly discriminate against you if the cancer prevents you from standing comfortably. The employer may be able to adjust this rule; however, the rule won’t be unlawful if it is reasonable in all the  circumstances.

Australian law requires an employer to make changes (reasonable adjustments) to help people with cancer do their job. Your employer can only refuse these changes if they would cause unjustifiable hardship to the business, on other reasonable business grounds, or if you still couldn’t perform the essential parts of your job.

Harassment and bullying

It’s against your rights to be harassed or bullied by managers, staff or clients because you have cancer or are caring for someone with cancer. Anti-bullying laws protect employees from repeated unreasonable behaviour that creates a risk to their health and safety. This includes unreasonable work demands, offensive comments, intimidation or exclusion. People may have different ideas about what is unacceptable behaviour. Even though someone did not mean to be offensive, it’s still not okay. Seek legal advice if you feel you’ve been bullied or harassed.

Seek professional advice

This information discusses the law that applies to most employees in Australia under the Commonwealth Disability Discrimination Act 1992 and Fair Work Act 2009. The law that applies to you depends on what organisation you work for, your employment status, and whether there is any applicable state or territory legislation. Your award or enterprise agreement may provide additional entitlements. You should get specific advice about your situation from a lawyer who specialises in employment matters.

If you can’t afford professional advice, Cancer Council may be able to refer you to a suitable lawyer or suggest a service that can give you more information. Call 13 11 20 to see what help, or possible free legal advice, may be available.

Ways to help resolve a workplace issue

If you feel that you have been treated unfairly, or been harassed, bullied or discriminated against in the workplace, because of cancer or being a carer of someone with cancer, there are steps you can take to try to resolve the issue.

1. Talk to your employer and follow your workplace policy for complaints. If your employer doesn’t have a policy to follow, complain to your manager or HR about how you’ve been treated.
2. Keep notes with dates and names of people who saw what happened. This will help you remember later. It can help to take a support person to any meetings about the issue, and ask them to take notes.
3. Most complaints are resolved through mediation or conciliation. This is an informal way of agreeing on an outcome. If mediation or conciliation doesn’t work, you may go to an administrative tribunal or to court for a legal judgment that must be followed.
4. The Fair Work Ombudsman has information about workplace rights and how to resolve workplace issues. If you’re still employed and believe you’ve been bullied, you can apply to the Fair Work Commission for an order to stop the bullying.
5. If you’re being discriminated against, lodge a complaint with the anti-discrimination agency in your state or territory, the Australian Human Rights Commission, or the Fair Work Ombudsman. Or make a discrimination complaint under a “general protections” claim to the Fair Work Commission. Contact one of these organisations or seek legal advice to see which is best for you before you lodge a complaint. It is illegal for your workplace to take action against you for lodging a complaint.
6. If you have been dismissed (sacked) or otherwise  disadvantaged, you can lodge an unfair dismissal or adverse action application with the Fair Work Commission within 21 days.

Caring for someone with cancer

It’s against the law for your employer to discriminate against you (treat you unfairly or less favourably) because of your caring responsibilities. It’s also illegal to deny you opportunities, intimidate or harass you, or terminate your employment if you are caring for someone with cancer.

If you ask for flexible working arrangements because of your caring duties, your employer must consider your request. They can refuse your request on reasonable business grounds only.

Unfair dismissal

Dismissal is the formal term used for “getting the sack” or being fired. An employer can’t pressure you to resign or dismiss you because you have cancer or are caring for someone, such as a family member or someone in your household who is diagnosed with cancer.

All permanent employees (full-time or part-time) are entitled to receive paid personal leave. In general, as long as an employee provides evidence of their illness, it is against the law to dismiss them for:

• taking paid personal leave (even if they are away for a long time)
• taking unpaid leave, or a combination of paid and unpaid leave, and/or personal leave of up to 3 months within a 12-month period.

If you think your employment was ended unfairly, this may be unfair dismissal. You have 21 days from the date of dismissal to lodge a complaint with the Fair Work Commission. You must also meet some other conditions to be eligible to lodge an unfair dismissal claim.