Cancer & employment

Tuesday 30 September, 2008

Developed with lawyers from Maurice Blackburn Cashman

On this page: Termination of employment ι What should I do? ι Discrimination and harassment

Many employers will be very supportive when an employee is diagnosed with cancer. However, if you feel you are treated unfairly or harshly by your employer, there are ways you can appeal.

A number of situations could make you feel victimised. Below are some examples. You should get advice about your own situation.

Termination of employment

If you're dismissed or ‘sacked', it may be a case of unfair dismissal, unlawful termination or both.

Unfair dismissal and unlawful termination have different legal meanings. Unfair dismissal is when your dismissal is considered harsh, unjust or unreasonable. Unlawful termination is when your employment is terminated for an unlawful reason that is set out in legislation.

There is more scope for appealing against an unfair dismissal than an unlawful termination.

Unfair dismissal

Where a termination of employment is considered harsh, unjust or unreasonable, legal proceedings can be brought for unfair dismissal under the Workplace Relations Act 1996 (Cwlth).

The Australian Industrial Relations Commission will consider, among other things:

  • whether there was a valid reason for the termination that related to the capacity or conduct of the employee or to the operational requirements of the employer's business
  • whether the employee was notified of that reason
  • whether the employee was given an opportunity to respond to that reason.

An application must be lodged within 21 days after the day on which the termination of employment happened. Employees who work for employers with fewer than 101 employees cannot make an unfair dismissal application.

There are a number of steps and timelines to comply with after lodging an application for unfair dismissal. It would be wise to seek legal help.

Unlawful termination

In some cases, the termination of employment will be illegal. Two illegal reasons that may be relevant are:

1. Temporary absence from work because of illness or injury:
This will only be considered unlawful if you presented a medical certificate to your employer within 24 hours of being absent, you met all award and employment agreement terms, and your total absences from work were less than 3 months in any 12-month period.

Unfortunately, this means that if your cancer requires you to be off work for more than 3 months in a 12-month period and you are not on paid sick leave, then you can be lawfully dismissed.

2. Physical or mental disability

If your employment is terminated because you have a physical or mental disability, including cancer or a disability caused by cancer, it may be illegal.

What should I do?

If you think you have been unfairly dismissed or your employment illegally terminated, talk to a lawyer. For free initial advice and referral to a lawyer with expertise in this area, contact Jobwatch. Jobwatch is a Community Legal Centre that specialises in employment issues.  

Discrimination and harassment

If you're discriminated against, the law that applies is the Equal Opportunity Act 1995 (Vic) or the Disability Discrimination Act 1992 (Cwlth).

Not all forms of discrimination are covered by these laws. For it to be illegal, the discrimination must be on one of the grounds covered by the Acts. If you are discriminated against because you have cancer, the relevant ground is ‘impairment' or ‘disability'.

The discrimination must happen in one of the areas specified by the Act, one of which is ‘employment'.

If a person in the course of employment takes part in discriminatory behaviour, both that person and their employer may be liable (legally responsible). Illegal discrimination may happen directly when a person with a disability is treated less favourably than a person without that disability in the same or similar circumstances.

Unlawful discrimination may also happen indirectly, for example if a person with a disability is required to comply with a condition that they cannot comply with because of a disability, and which is unreasonable in the circumstances.

The law states that an employer must not discriminate against a person applying for a job on the grounds of his or her disability or impairment in:

  • deciding who should be offered employment
  • the terms on which employment is offered
  • refusing, or deliberately not offering, employment.

An employer must not discriminate against an employee on the grounds of his or her disability or impairment in any of the following:

  • the terms or conditions of employment
  • denying or limiting access to opportunities for promotion, transfer or training or to any other benefits connected with the employment
  • dismissing the employee or otherwise ending employment
  • denying the employee access to occupational training or retraining programs
  • imposing a requirement or condition that cannot be complied with because of a diagnosis of cancer
  • subjecting the employee to any other loss or damage.

The legislation also protects the rights of contract workers and people applying to employment agencies for work.

If you believe you have been illegally discriminated against because of a diagnosis of cancer, seek legal advice immediately.

You can obtain free initial advice from the Disability Discrimination Legal Service. This service specialises in disability discrimination law. See also our Community Legal Centres page.

You could also contact:

Victorian Equal Opportunity and Human Rights Commission
Level 3, 380 Lonsdale St, Melbourne 3000. Phone 9281 7111 or 1800 134 142 (toll free)

Human Rights and Equal Opportunity Commission (Commonwealth)
Level 8, Piccadilly Tower, 133 Castlereagh St, Sydney 2000. Phone: (02) 9284 9600 or 1300 369 711

This information is brief, and may not be relevant to every claim. Employment law is a complex area of law. You will need specialist advice.

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