Rights and responsibilities of people with cancer:

  • they have a right to fair treatment
  • they do not have to disclose your cancer diagnosis
  • they cannot be denied a job because of cancer
  • they can ask for a reasonable work adjustments
  • they have a responsibility to inform their employer when taking leave and provide appropriate documentation

What it means?

People with cancer have the right to be treated fairly at work when they 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.

They 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 yourself or others as a result of their cancer history. Their employer can’t disclose their health information to others in the workplace unless you they consented or there is a risk to health or safety, (and in other very limited circumstances as required by law).

They can’t 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 they’re treated differently because of 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. The employer is required to support an employee by making reasonable changes to the role in response to what an employee can and can’t do during or after treatment.

Reasonable adjustments may include agreeing to flexible working arrangements, including part-time 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).

Generally, the employer should be accommodating if an employee is  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 one  has to start with the 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.

Need to talk to someone? These organisations can help:

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.

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.

  • Unions

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.

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.

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.