Working during treatment and recovery

Wednesday 1 January, 2014

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On this page:  Flexible working arrangements | Leave entitlementsReturning to work | Discrimination, harassment & bullying | Key points


If you decide to work during treatment or return to work after it’s finished, there are several options to consider, such as flexible working arrangements and your leave entitlements. You may also want to talk to your employer about a return to work plan.

Flexible working arrangements

Under the National Employment Standards you have the right to ask for flexible working arrangements.

You may be able to make the following changes:

  • work location (e.g. going to another office or work site, working from home)
  • work patterns (e.g. job sharing, split shifts)
  • work hours (e.g. different start/finish times, reducing hours).

You are eligible to apply if you have at least 12 months of continuous service. You need to ask in writing and give details of the change you want and the reasons for this requested change. Your employer needs to accept or refuse your request in writing within 21 days of receiving your request. They can only refuse your request on reasonable business grounds.

"I met with the HR manager and it was agreed that I could work from home during chemotherapy. However, I didn’t react well to chemo and at one point I was hospitalised and I couldn’t work at all. My employer said to do what I could."
Rebecca

 You and your employer can determine the most practical arrangements. Your company isn’t obliged to agree to all your requests – for example, if you ask to work from 8pm–10pm, three days per week, it may not suit the needs of the workplace.

After a few weeks of your new schedule, you can catch up with your manager or human resources department to discuss if the flexible arrangements are working for both of you. You might want to change the arrangement as you start to feel better.

Tips 
  • If possible, take a few hours off instead of the whole day.
  • If possible, schedule treatment sessions so you have more recovery time (e.g. late in the day or on Fridays, if you don’t work on weekends).
  • Explore working from home. Not having to get ready for work or commute may help you feel less tired.
  • Ask your employer if your colleagues can help do some of your work during absences.
  • If you feel overwhelmed, don’t let your performance suffer too much before re-evaluating your work arrangements.
  • If appropriate, organise job-sharing or reduce your hours.
  • Write down the plan you and your employer have agreed on and share your notes with your employer.
  • Let your colleagues know about any changes to your working schedule.

Leave entitlements

There are several types of leave options available to help you balance work and treatment. The National Employment Standards (NES) outline the rules for several types of paid and unpaid leave, which apply under most awards or enterprise agreements in Australia (see next page). To find out more about an NES entitlement see the relevant fact sheets at www.fairwork.gov.au.

Award or agreement based entitlements may be different from those provided by the NES but can’t be less.

Tips 
  • Ask your manager or human resources department if there is a waiting (qualifying) period for paid personal leave, if you are a new employee.
  • Check if can cash out your annual leave. This is only possible if your award or agreements says that cashing out is allowable. Talk to your employer about the conditions that apply.
  • Give as much notice as possible before taking personal leave.
  • Combine personal leave with annual leave and long service leave, if necessary.
  • Ask your manager if you can take unpaid time off.
  • Know your rights. You cannot be dismissed for taking up to three months off for illness each year.
  • If you believe your employer isn’t giving you the correct amount of personal or annual leave, check your entitlements. Contact the Fair Work Ombudsman on 13 13 94.

   Types of leave entitlements  

Personal/carer’s leave

  • This can be taken when you are unwell or injured, or if you need to care for someone else. It used to be called sick leave.
  • Full-time employees receive a minimum of 10 days of paid personal leave each year.
  • Part-time employees receive a pro-rata (proportional) amount of personal days based on the number of hours they work.
  • Paid personal leave is an entitlement for permanent employees only. Casual staff may be able to take unpaid leave.
  • This type of leave is paid at the base rate of pay.
  • Unused leave days accumulate from year to year.
  • An employer can ask you to provide evidence that you need to take personal leave (e.g. a medical certificate).

Annual leave

  • Permanent employees receive a minimum of four weeks of paid annual leave for each year of service with their employer. Part-time staff are paid on a pro-rata (proportional) basis. Some employees, such as shift workers, are entitled to an additional week.
  • Annual leave is paid at the regular base rate or at an increased rate (leave loading).
  • Unused annual leave accrues over time. Your employer can direct you to use annual leave.
  • Annual leave continues to accrue when an employee takes a period of paid annual leave or paid personal/ carer’s leave. Leave doesn’t accumulate during periods of unpaid leave.

Long service leave

  • A period of leave if you’ve been working continuously for the same business for an extended period of time.
  • This paid leave may apply after 7–15 years.
  • Generally, long service leave is two months paid leave after 10 years of service and one month paid leave for each additional five years of service.
  • Conditions may vary depending on which state or territory you live in. • If you have worked at least five years with your employer and you resign due to illness, you may be entitled to a pro-rata long service leave payment.
  • It is paid at the employee’s ordinary rate of pay.
  • Untaken long service leave is usually paid at termination.

Unpaid leave

  • If you have used your paid personal leave or if you are a casual employee, your employer might grant you leave from work without pay. This is not an entitlement – it is up to your employer to allow it.
  • You may have to use your annual leave before your employer allows you to take unpaid leave.

Returning to work

It’s natural to feel nervous if you’re returning to work after you’ve been away for a while. You may be concerned about how your employer and colleagues will react and if there will be questions about your performance.

All employers are legally required to take reasonable steps to accommodate the effects of an employee’s illness to comply with the Disability Discrimination Act 1992. This may mean, for example, that your employer allows you to return to work gradually, is flexible with start and finish times, gives you time off to attend medical appointments, or provides a supportive chair.

An employer may not have to accommodate the effect’s of an employee’s illness, especially if these changes impose a significant burden on the business.

If you are unable to carry out your previous role, your employer may offer a rehabilitation scheme to train you for another role. Your employer is only required to offer you a different role if the cancer is work-related.

"We just had one of the truck drivers diagnosed with malignant melanoma. The boss was fine. When he was able to return to work, the job was there for him even though we are all casual workers. The company had employed others while he was getting treatment, but his job was still there for him when he returned."
Jason

Return to work plan

A return to work plan is a helpful document prepared by you and your employer (or a rehabilitation professional) outlining your approach to returning to work. The plan is tailored to your specific situation and needs. The following may be included in your written return to work plan:

  • approximate date of return to work
  • time period of the plan
  • a summary of duties
  • start and finish times and break times
  • any specific restrictions or recommendations as stated by your health care team • any short-term changes to your terms and conditions of employment (e.g. leave, remuneration) as a result of your rehabilitation
  • any potential triggers within your role that could create additional stress, harm or prevent your recovery
  • details of the supervisors or managers responsible for monitoring progress of the return to work plan
  • dates of regular meetings to discuss progress and adjustments to the plan if needed.

To find out more, see the Australian Government’s JobAccess website, www.jobaccess.gov.au or Worksafe www.worksafe.vic.gov.au.

Discrimination, harassment & bullying

While many employers and colleagues are caring and supportive, discrimination in the workplace can occur. Knowing your rights and responsibilities may help you feel reassured that you are not being unfairly treated due to your illness or treatment.

Discrimination in employment is covered by the Fair Work Act 2009 and the Disability Discrimination Act 1992, and the relevant state and territory legislation.

It may occur in different ways:

Direct discrimination

This means you are treated less favourably because of your disease. For example, an employer denied you a promotion on the basis of the cancer.

Indirect discrimination

This is when a policy, rule or practice that seems fair actually disadvantages you because you have a disability. For example, a requirement for staff to stand while serving customers might indirectly discriminate against you if the cancer prevents you from standing comfortably. It might be possible for the employer to adjust this rule.

You also have the right not to be harassed or bullied by managers, staff or clients. This could include offensive or humiliating remarks, intimidation or exclusion. People often have different ideas about what is offensive or unacceptable behaviour, and sometimes you might feel harassed from behaviour which was not intended to offend or harm you.

For a guide to disability discrimination and harassment see www.humanrights.gov.au/brief-guide-disability-discrimination-act. All state and territory discrimination agencies cover disability discrimination issues but there are some differences in the detail of these laws.

Workplaces generally have guidelines in place regarding how to deal with harassment and bullying. Talk to your manager or human resources department if you find someone’s behaviour unacceptable, and they may help you resolve it. If you reasonably believe that you have been bullied, you can apply to the Fair Work Commission for an order to stop the bullying.

Unfair dismissal

If you think your employment has been terminated unfairly, it may be a case of unfair dismissal. This means your dismissal is considered harsh, unjust or unreasonable.

You can lodge a complaint with the Fair Work Commission. Keep in mind that you must lodge an unfair dismissal claim within 21 days of being dismissed. You must also meet certain conditions, such as length of service.

Key points

  • You might find it useful to talk to your medical team about balancing work and cancer. Doctors or nurses can give you information about treatment and side effects.
  • Talk to your employer about flexible working arrangements. You may be able to adjust your work location or hours.
  • If you want to change your work hours or role, discuss the arrangements with human resources staff or your manager. As your health improves, you may want to ease back into your previous routine.
  • Permanent employees may take personal leave when they can’t come to work due to illness or injury. This is sometimes called sick leave.
  • Eligible employees can also use annual leave, long service leave and unpaid leave.
  • Employers must take reasonable steps to accommodate the effects of an employee’s illness.
  • If you can’t return to your previous role, you may be able to have retraining if the cancer is work-related.
  • All employees have the right not to be discriminated against, harassed or bullied. Talk to your human resources department or manager if you have a problem, or contact the discrimination agency in your state or territory.
  • If you think you have been dismissed unfairly, you can lodge a complaint with the Fair Work Commission.
  • Cancer Council offers a legal referral service for workplace issues. Call the Cancer Council on 13 11 20 to enquire.

Reviewed by: Marie Pitton, Head of Human Resources, Mortgage Choice, NSW; Merilyn Speiser, Principal Consultant, Catalina Consultants, NSW; Helen Tayler, Belconnen Health Centre, Oncology Social Worker, ACT; Pauline Shilkin, Consumer.
Updated: 01 Jan, 2014