Employer rights and responsibilities when an employee has or has had cancer
People who have, have had or are at increased risk for cancer – and their carers – are entitled to be treated fairly at work, including in job recruitment (by employment agencies also), employment terms and conditions, promotional, transfer and training opportunities, and in termination of employment.
Employees don’t have to disclose a cancer diagnosis or history when applying for a new job, although they do need to be honest about their ability to perform the necessary requirements of the role and if there is a health or safety risk to themselves or others as a result of their cancer or cancer history. If an employee does disclose a cancer diagnosis or history, this must be kept in confidence unless the employee has consented to the information being shared or if there is a risk to health or safety if the information is not shared. (There are also other very limited circumstances in which this type of information may be disclosed as required by law).
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. For example, an employee cannot be denied a job just because they have cancer, have had cancer or a carer of someone affected by cancer. This could be direct disability discrimination – that is, if the person is treated differently because of their cancer or cancer history.
Unlawful disability 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. Employers are required to support their employees by making reasonable changes to their role in response to what they can and can’t do during or after treatment.
Employers can ask an employee who requires reasonable adjustments to provide medical or other evidence of the need for the adjustments. The employee’s health professional may be able to provide useful information and advice about their capabilities when they return to work, including the rest breaks and other support they might need. Reasonable adjustments may include agreeing to flexible working arrangements, including part-time or home-based work.
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).
Employees affected by cancer have a responsibility to let their employer know when they’re taking leave and to provide the appropriate documentation as required by workplace policies or agreements. In terms of taking leave for treatment, employees are usually required to take personal leave first, then annual leave, then any long-service leave and finally unpaid leave if necessary. Carers can also 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.
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.
Employers are required to ensure that their employees are protected, as far as is practical, from risks which may affect health and safety, including where health and safety is affected by bullying. Bullying is defined as an individual or group repeatedly behaving unreasonably towards a worker, which creates a risk to health and safety. It includes people spreading misinformation or malicious rumours about another person, for example, saying that they’re not pulling their weight or taking too much time off.