Many employers will be very supportive when an employee is diagnosed with cancer. However, if after a diagnosis of cancer 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. You should get specific advice for each set of circumstances. However, the following are some common examples of what those living with cancer might experience.
If you are dismissed or terminated ('sacked') from your employment, it may be a case of unfair dismissal, unlawful termination or both. Unfair dismissal is when your dismissal is considered harsh, unjust or unreasonable. A termination is only unlawful when you are terminated for reasons given in the legislation. There is more scope for appealing against an unfair dismissal than an unlawful termination. For free initial advice and referral to a lawyer who specialises in this area you can contact Jobwatch. Jobwatch is a community legal centre that specialises in employment issues.
Where a termination is considered harsh, unjust or unreasonable, legal proceedings can be brought for unfair dismissal under the Workplace Relations Act 1996. Where an application for unfair dismissal is lodged, the Australian Industrial Relations Commission will consider, amongst other things:
a) 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
b) whether the employee was notified of that reason
c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee.
It is important to note that an application must be lodged within 21 days after the day on which the termination happened. There are a number of steps and time lines to comply with after lodging an application for unfair dismissal. It would be wise to seek legal help.
In some cases the termination of employment will be unlawful (illegal). Two relevant unlawful reasons for terminating a person's employment are:
a) Temporary absence from work because of illness or injury (provided a medical certificate is presented within twenty-four hours, all award and agreement terms are met, and only if the total absences are less than three months in any twelve-month period). Unfortunately, this means that if your cancer requires you to be off work for more than three months in a twelve-month period, then you can be lawfully dismissed.
b) Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, country of birth. If you have cancer, the relevant reason here will be physical or mental disability.
If you are discriminated against, the legislation (law) which applies is the Equal Opportunity Act 1995 (Vic.) or the Disability Discrimination Act 1992 (Cwlth).
Not all forms of discrimination are covered by this legislation. In order to be illegal, the discrimination must be based on one of the points covered by the Acts. Where cancer has been diagnosed, the relevant point 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). Unlawful 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 in the case where a person with a disability is required to comply with a requirement or condition which, due to his or her disability, cannot be complied with, and which is unreasonable in the circumstances.
In general terms, 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:
a) determining who should be offered employment
b) the terms on which employment is offered
c) refusing, or deliberately not offering, employment.
Further, an employer must not discriminate against an employee on the grounds of his or her disability or impairment in:
a) the terms or conditions of employment
b) denying or limiting access to opportunities for promotion, transfer or training or to any other benefits connected with the employment
c) dismissing the employee or otherwise terminating employment
d) denying the employee access to occupational training or retraining programs
e) imposing or proposing a requirement or condition that cannot be complied with because of a diagnosis of cancer
f) subjecting the employee to any other loss or damage.
The legislation also seeks to protect the rights of contract workers and people applying to employment agencies for work.
If you believe you have been unlawfully discriminated against because of a diagnosis of cancer you should seek legal advice immediately.
You can obtain free initial advice from the Disability Discrimination Legal Service. This is a service that specialises in Disability Discrimination Law.
You can also contact the following agencies for help:
The information contained in this chapter is necessarily brief and may not be relevant to every claim. Employment law is a complex area of law. You will need specialist advice.
Updated June 2004
