Employment and cancer

• There is no law that requires you to tell your employer about your diagnosis, but it can help. Providing your employer with early and general information about your condition gives them the opportunity to support you appropriately. If you think your employer is unlikely to be understanding, a more careful approach may
  be better.
• Make reasonable changes – If your employer knows you have cancer, they may be more understanding if you need time off for treatment, tests or follow-up care.
  The law says they have to make changes (known as reasonable adjustments) to help you do your job during and after treatment. These changes can be to your work duties, workspace or hours. For example, allowing additional breaks because of fatigue or modifying your workstation.
• Maintain confidentiality – If you do tell your employer about your diagnosis, they should keep the information confidential. They can’t tell your co-workers about your diagnosis unless you agree.
• If you decide not to tell your employer, it can be difficult if the cancer and treatment affects your work or you miss a lot of work because of medical appointments.

Some people with cancer may feel isolated at work. They may think people are talking about them behind their back, saying that they’re not pulling their weight or that they’re taking too much time off. National anti-bullying laws protect employees from repeated behaviour that creates a risk to their health and safety.

The first step in dealing with bullying and harassment is to talk to your manager or the human resources department. If your manager is the person who is bullying you, then you can talk to someone higher up.

You should keep detailed written notes of all the incidents of bullying, including dates, to help you remember what has happened, and explain it later if necessary.

If the bullying causes you to take time off work due to stress or another mental illness, such as depression or anxiety, you may be entitled to workers’ compensation. You’ll need to get a WorkCover medical certificate confirming that your mental illness is due to the bullying or harassment. You can also apply to the Fair Work Commission for an order to stop the bullying.

Most employers are supportive when an employee is diagnosed with cancer. However, misconceptions about cancer may mean some people are treated unfairly. Sometimes, this may be considered discrimination. Being discriminated against at work because you have cancer is against the law.

Examples of discrimination may include an employer:

• telling you to quit or firing you
• demoting you to a lower-paid or less demanding job after a temporary absence
• sacking you for a reason relating to your diagnosis
• promoting another employee over you with less experience or ability to do the job.

If you’re sacked, this could be considered adverse action and an unfair dismissal. 

How to take action

If you think you have been discriminated against you can lodge a complaint with the Fair Work Ombudsman, Fair Work Commission, Australian Human Rights Commission or the relevant AntiDiscrimination body or Human Rights/Equality Opportunity Commission in your state or territory.

If you’re sacked, or believe you have otherwise been unfairly treated because you have cancer, this may be adverse action and/or unfair dismissal. You can lodge a complaint with the Fair Work Commission.

For an unfair dismissal complaint, you have 21 days after being dismissed to lodge an unfair dismissal claim with the Fair Work Commission. The Fair Work Ombudsman can also provide you with information and advice about unfair dismissal and adverse action.

In general, Australian law requires an employer to make reasonable changes to help you perform the core or essential elements of your job if you are unable to perform them because of an illness or disability. These are known as the inherent requirements of the job.

For example, if you work in a call centre and you’re not able to hold the phone in your hand, your employer may need to purchase a hands-free headset for you to use. The inherent requirements of the job are that you can speak and hear on the phone – not that you can hold a phone.

If your employer fails to make reasonable changes to help you perform the inherent requirements of your job, then this may be unlawful discrimination.

Employers can’t pressure you to resign or dismiss you because you have cancer. If you have lost your job and you believe this is because of you have cancer, then you may have been unfairly dismissed. 

In general, it is against the law to sack someone who is off work due to illness for less than three continuous months, or a total of three months over a 12-month period.

If you think you’ve been sacked unfairly, this may be unfair dismissal. Keep in mind that being sacked for taking more than three months off work in a year is not always ‘fair’ dismissal.

Most workers in Australia (other than casual employees) are entitled to a minimum of 10 days paid personal/carer’s leave (this includes sick leave). You need to let your employer know as early as possible if you are unable to come to work for a day or a period. You may need to provide appropriate medical certificates.

If you don’t let your employer know or provide evidence if they ask for it, you may not be entitled to paid leave. You may also face disciplinary action, which may include termination.

Usually, you need to take your personal/carer’s leave, then your annual leave, then your long service leave and, finally, unpaid leave. Your employer may allow you to take unpaid leave before using up your paid leave, but this is not required by law.

Whether or not you are sick, your employer can also direct you to use your annual leave if you have accrued too much.

Most employees (except casuals) are entitled to receive at least 10 days of paid personal/carer’s leave each year, which you can use to care for a family member. You are also entitled to at least 2 days each of unpaid carer’s leave and unpaid compassionate leave each year. You cannot be sacked for using these entitlements. You should check the terms of your employment to understand your leave entitlements.

Discrimination against you at work because of your caring responsibilities is against the law. If your employer sacks you, this may be unfair dismissal.

If your employer needs more information to accommodate your needs at work, or reasonably believes that you are not fit for work, or if your colleagues may be exposed to infection or contaminants (e.g. if you are vomiting), your employer has the right to ask you to undergo a medical examination. You will need to see your GP and ask them to determine whether or not you are fit for work Your employer must allow you to return to work if you:

• have a certificate from your doctor saying you’re fit to return to work
• can perform the inherent requirements of your job after the provision of reasonable changes.

In general, your employer is required to make reasonable changes to your role to take account of what you can and can’t do during and after treatment. Allowing you to vary your hours, including working part-time, may be a reasonable request. If your employer generally permits people to work part-time, but refuses to permit you to do so, this may be discrimination. Sacking you because you can’t work full-time may be unfair dismissal.

Expecting everyone to work full-time – when this is not an inherent requirement of the job – may also be indirect discrimination. Indirect discrimination is where a policy or rule applies to everyone equally, but is harder for a person with an illness or disability to comply.

If your employer refuses to allow you to work part-time, you should not resign. Call Cancer Council 13 11 20, or speak with a lawyer about your situation.

Being offered a more junior role or lower pay may be adverse action or constructive dismissal. Constructive dismissal means that you may have effectively been terminated from your old role and offered a new role with different employment terms. As this includes termination, it may be an unfair dismissal or adverse action. This is only lawful if the dismissal was not unfair or unlawful, such as where you:

• can no longer perform the inherent requirements of your old job
• have been absent from work for longer than three months in one year and it was unreasonable for your employer to keep your job open for you.

Talk to a lawyer before accepting the offer of a new role or lower pay.

You have no legal obligation to tell a prospective employer about your cancer diagnosis, but this may be useful if it will affect your ability to perform the inherent requirements of the job and you need workplace modifications to be made.

Also, if you don’t disclose your cancer history, you may miss out on workers’ compensation if your condition gets worse on the job. You should speak to a lawyer if you have any concerns about this.

You should answer all questions in an interview honestly. However, the employer is not allowed to ask specifically about illnesses, whether past or current. They can ask you whether you will be able to perform particular tasks.

If you have a gap on your CV due to treatment, you may want to write “Career break” next to the time period. This is relatively common, and if you write something on your CV, many employers will not ask. If they do, you could say that you had a health or family issue, but that it’s resolved now.

If you disclose your cancer diagnosis and you are not given the job due to the cancer, you may be able to make a discrimination complaint. Keep in mind, though, that this is very difficult to prove and any compensation rewarded is usually quite small.