What it means?
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.