Workplace rights

Many people fear that they will face discrimination if they tell their employer they have cancer. Others fear being dismissed because they need time off work for treatment or to care for a family member with cancer. While many employers and colleagues are caring and supportive, discrimination in the workplace can occur. Knowing your rights and responsibilities may help reassure you that you are being treated fairly.

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 because of your cancer 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 your cancer diagnosis, 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, it won’t be unlawful if the rule is reasonable in all the circumstances.

Australian law requires your employer to make changes to accommodate the effects of cancer and help you perform your job (reasonable adjustments). Your employer can refuse to make these changes only if they would cause unjustifiable hardship to the business.

Harassment and bullying

You also have the right not to be harassed or bullied by managers, staff or clients because you have cancer or are caring for someone with cancer. National anti-bullying laws protect employees from repeated unreasonable behaviour that creates a risk to their health and safety. This could include unreasonable work demands, offensive or humiliating remarks, intimidation or exclusion. People often have different ideas about what is offensive or unacceptable behaviour. Just because the person did not mean to be offensive does not mean that it is okay. You should seek advice if you feel you’ve been bullied or harassed.

Caring for someone with cancer

It is against the law for your employer to discriminate against you (treat you unfairly or less favourably) because of your caring responsibilities. It is also illegal to deny you opportunities, intimidate or harass you, or terminate your employment because you are caring for someone with cancer. If you ask for flexible working arrangements because of your carer’s duties, your employer must consider your request. They can refuse your request on reasonable business grounds only.

Unfair dismissal

An employer can’t pressure you to resign or dismiss you because you have cancer or are caring for a family or household member diagnosed with cancer.

All permanent employees 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, or a combination of paid and unpaid, personal leave of up to three 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.

Resolving a workplace issue

• First, try talking with your employer and follow your workplace’s policy for handling grievances or complaints. If your employer does not have a policy to follow, complain to your manager or human resources department about how you’ve been treated.
• Keep notes about the behaviour. List dates and names of people who saw the behaviour. This will help you remember what happened so you can explain it later.
• 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.
• The Fair Work Ombudsman provides information about workplace rights and how to resolve workplace issues.
• If you’re still employed and reasonably believe you’ve been bullied, you can apply to the Fair Work Commission for an order to stop the bullying.
• If you think you’re being discriminated against, you can lodge a complaint with the discrimination agency in your state or territory, the Australian Human Rights Commission, or the Fair Work Ombudsman. Contact these organisations or seek legal advice to see which one is best for your situation before you lodge a complaint.
• If you have been dismissed from your job or experienced other disadvantage due to your cancer diagnosis, you may be able to lodge an unfair dismissal or adverse action application with the Fair Work Commission. You must lodge these types of claims within 21 days of being dismissed from your job.
• If you have any questions, call Cancer Council 13 11 20. We may be able to connect you with our Legal, Financial and Workplace Referral Services.

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 the 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 obtain specific advice about your situation from a lawyer who specialises in employment matters. If you cannot afford professional advice, Cancer Council’s Legal, Financial and Workplace Referral Services may be able to assist. Contact 13 11 20 for more information.