Many people affected by cancer have concerns about their legal rights and responsibilities in particular with regards to what information they are obliged to disclose to others including their employer and what support they can reasonably expect.
For information on the rights and responsibilities of individuals affected by cancer click here (link to next page).
For information how health professionals can support their patients’ rights click here.
For information on employers’ rights and responsibilities click here.
Your rights and responsibilities:
You have the right to be treated fairly at work when you have cancer, have had cancer, are at increased risk for cancer, or are a carer for someone with cancer. Disability discrimination is against the law in Australia and people affected by cancer and their carers are protected by the Disability Discrimination Act 1992 and equal opportunities laws.
This means that people affected by cancer must be treated fairly in job recruitment (including by employment agencies), in employment terms and conditions, promotional, transfer and training opportunities, and in termination of employment.
You don’t have to disclose a cancer diagnosis or history when applying for a new job, although you do need to be honest about your ability to perform the necessary requirements of the role and if there is a health or safety risk to yourself or others as a result of your cancer history. Your employer can’t disclose your health information to others in the workplace unless you have consented or there is a risk to health or safety, (and in other very limited circumstances as required by law).
You can’t be denied a job just because you have cancer, have had cancer or a carer of someone affected by cancer. This could be direct disability discrimination – that is, if you’re treated differently because of your cancer or cancer history.
Unlawful discrimination can also be indirect, which means an employee affected by cancer is treated the same as an employee without cancer, with the effect that the person affected by cancer is disadvantaged because they are not able to participate or are unable to comply with a condition. For example, a workplace might have a rule that all employees must stand at work all day (perhaps in a factory or shop) even though standing all day might be very painful or impossible for someone affected by cancer.
Employees affected by cancer have a right to ask for reasonable adjustments to be made to their working conditions to allow them to work safely and productively. Your employer is required to support you by making reasonable changes to your role in response to what you can and can’t do during or after treatment. Your health professional may be able to provide useful information and advice about your capabilities when you return to work, including the rest breaks and other support you might need.
Reasonable adjustments may include agreeing to flexible working arrangements, including part-time work. Consider talking to a lawyer if a different (particularly a more junior) role or less pay is offered when you return to work after cancer.
There are two exceptions to the general rule prohibiting employment discrimination against people affected by cancer. The discrimination may not be unlawful if:
- the person would be unable to carry out the necessary parts of a job safely to an acceptable standard (known as the inherent requirements of the job), because of the cancer diagnosis or history, even if the employer made reasonable adjustments for the person; or
- avoiding the discrimination would impose an unjustifiable hardship on the employer (for example, where the costs of making the adjustments would be unreasonably high).
Generally, your employer should be accommodating if you are only unable to perform the necessary parts of your job for a short period of time, such as immediately following treatment, where there is a reasonable chance that you will be able to return to your full duties in time.
Employees affected by cancer are also protected by Australia’s fair work legislation. In terms of taking leave for treatment, usually you have to start with your personal (sick/illness) leave first, then annual leave, then any long-service leave and finally unpaid leave if necessary. Employees may also be entitled to income protection under a company policy, insurance policy, superannuation fund or workplace agreement. Carers can use their personal/carers leave and annual leave and may also be entitled to take two days each of carers’ leave and compassionate leave per year.
Employees affected by cancer have a responsibility to let their employers know when they’re taking leave and to provide the appropriate documentation as required by their employer’s workplace policies or agreements.
In general, an employer can’t dismiss a person for taking leave due to illness if they take less than 3 months off over a 12-month period and they have provided medical certificates or statutory declarations for their absence.
If you experience a problem at work, it’s a good idea to talk to your employer if you feel comfortable to do so. You might approach your manager in the first instance and see whether you can solve the problem together. It may be helpful to take a support person with you if you’re concerned about how the meeting will go or think you’ll need a witness to the conversation. Let your manager know if you plan on bringing someone to the meeting. Keep detailed notes of any meetings and correspondence about the problem in case you need to remember things later.
If you don’t feel comfortable raising the matter with your manager or the matter hasn’t been resolved in this way, then you might want to contact your union or human resources department. Keep detailed notes of these conversations.
If you can’t resolve the problem through informal means then you might consider making a formal complaint. In this case it is important to seek advice quickly because some of the timeframes for making a complaint are very tight, and if you miss the deadlines you may have no further options.
Seek early advice if problems
If you have been dismissed, it’s very important that you seek advice immediately – you only have 21 calendar days after being dismissed to lodge particular complaints in the Fair Work Commission. Time limits for other claims vary and may be substantially longer. It is therefore vital that you seek advice as soon as possible so that you do not lose the opportunity to make a claim.
- Fair Work Ombudsman (the FWO):
Ph: 13 13 94
The FWO is a free service that has the power to mediate, investigate and prosecute employment complaints. The FWO runs a free helpline, which is a good point of first contact if you think that you have an employment problem. The FWO usually tries to sort out employment disputes by mediating between the employee and the employer, but they can also investigate and prosecute if appropriate in the circumstances.
- Fair Work Commission (the FWC)
Ph: 1300 799 675
The FWC is Australia’s national workplace relations tribunal. It operates like a court so FWC staff cannot provide you with advice about your problem or how to run your case. If you have time it is a good idea to get advice from the FWO (above) or legal advice (see suggestions below) before lodging an employment complaint with the FWC as it can be difficult to know which type of complaint to make.
If you belong to a union, your union may be able to arrange for you to be provided with free legal advice. Some unions will also represent their members by making claims on their behalf.
- National Association of Community Legal Centres – including employment specific CLCs
Ph: (02) 9264 9595
Community law centres give people free legal information and advice. Some states have community law centres that specialise in employment law. Find a community law centre in your area by contacting the National Association of Community Law Centres.
- Private lawyers
- Contact your state or territory law institute or society
Private lawyers charge for their services. Some offer an initial free short consultation and some take employment cases on a ‘no win, no fee’ basis. It is a good idea to ask your lawyer for an estimation of the likely costs of making a complaint about your employment problem. Ask your friends if they have any recommendations for a lawyer or contact the Law Society or Law Institute in your state or territory for a referral to an employment lawyer.
- Australian Human Rights Commission
Ph: 1300 656 419
If you think that you have been discriminated against because you have cancer, or because you care for someone with cancer, then you can make a complaint to the Australian Human Rights Commission (AHRC) or your state or territory-based human rights/equal opportunities/anti-discrimination commission. Making a complaint to the AHRC is free and relatively simple. The AHRC is not a court or tribunal but it can investigate your complaint (which would usually involve contacting your employer) and try to resolve the matter by conciliation.
- Cancer Council 13 11 20
Cancer Councils across Australia provide a range of information and support services for people affected by cancer and their carers. Some Cancer Councils can provide referrals for free legal and/or workplace advice. Eligibility criteria do apply but if you do not qualify for free help then Cancer Councils can connect you with paid assistance.