Many people fear that they will face discrimination if they tell their employer they have cancer. Others fear being sacked because they need time off work for treatment or to care for a family member with cancer. 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, or because of your caring responsibilities.
Concerns about discrimination
Being discriminated against at work because you have cancer is against the law under the Commonwealth Disability Discrimination Act 1992 and Fair Work Act 2009, and the relevant state and territory legislation. Discrimination may occur in different ways:
- Direct discrimination – This means you are treated less favourably because of your illness. For example, an employer denies you a promotion, demotes you to a lower paid job, refuses to hire you or sacks you for a reason related to your cancer diagnosis.
- 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.
Australian law requires an employer to take reasonable steps to accommodate the effects of an employee’s illness and help you perform your job. This may include making minor changes to your work duties, reducing your working hours or providing you with additional equipment. For more information on disability discrimination, see humanrights.gov.au.
Harassment and bullying
You also have the right not to be harassed or bullied by managers, staff or clients because you have cancer or are caring for someone with cancer. National anti-bullying laws protect employees from repeated unreasonable behaviour that creates a risk to their health and safety. This could include unreasonable work demands, 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 that was not intended to offend or harm you.
Caring for someone with cancer
It is against the law for your employer to discriminate against you (treat you unfairly or less favourably) because of your caring responsibilities. It is also illegal to deny you opportunities, intimidate or harass you, or terminate your employment because you are caring for someone with cancer. Employers are required to take reasonable steps to accommodate your caring responsibilities – see information for working carers.
Seek professional advice
This section discusses the law that applies to most employees in Australia under the Commonwealth Disability Discrimination Act 1992 and Fair Work Act 2009. The law that applies to you depends on the organisation you work for, your employment status, and whether there is any applicable state or territory legislation. Your award or enterprise agreement may provide additional entitlements. You should obtain specific advice about your situation from a lawyer who specialises in employment matters.
An employer can’t pressure you to resign or dismiss you because you have cancer or are caring for a family or household member diagnosed with cancer.
All permanent employees are entitled to receive paid personal leave, which includes sick leave and carer’s leave. In general it is against the law to dismiss someone for:
- taking paid personal leave (even if they are away for a long time)
- taking temporary leave of up to three months in a 12-month
- period for illness, even if some or all of that leave is unpaid.
If you think you’ve been sacked unfairly, this may be unfair dismissal. You have 21 days from the date of dismissal to lodge a complaint with the Fair Work Commission. You must also meet some other conditions to be eligible to lodge an unfair dismissal claim, including a minimum length of service.
Resolving a workplace issue
- First try talking with your employer. Workplaces generally have guidelines about how to deal with complaints of discrimination, harassment and bullying.
- The Fair Work Ombudsman provides information about workplace rights and how to resolve workplace issues.
- Keep notes about the behaviour, including dates. This will help you remember everything that has happened so you can explain it later.
- Most complaints are resolved through mediation or conciliation. If this doesn’t work, you may go to an administrative tribunal.
- If you reasonably believe you’ve been bullied, you can apply to the Fair Work Commission for an order to stop the bullying.
- If you think you’re being discriminated against, you can lodge a complaint with the discrimination agency in your state or territory, the Australian Human Rights Commission (humanrights.gov.au), or the Fair Work Ombudsman. Contact these organisations or seek legal advice to see which one is most appropriate for your individual circumstances before you lodge a complaint.
- If you have been dismissed from your job or experienced other disadvantage due to your cancer diagnosis, you may be able to lodge an unfair dismissal or adverse action application with the Fair Work Commission. You must lodge claims within 21 days of being dismissed.
- If you have any questions, call Cancer Council 13 11 20. We can send you more information and may be able to connect you with our legal, financial and workplace referral services.
- All employees have the right not to be discriminated against, harassed or bullied.
- It is illegal for an employer to treat you unfairly or less favourably because you have cancer or are caring for someone with cancer.
- It is against the law to deny you opportunities, harass you or dismiss you because you have cancer or are caring for someone with cancer.
- Employers must take reasonable steps to accommodate the effects of an employee’s illness or caring responsibilities.
- All permanent employees are entitled to receive paid personal leave.
- It is generally against the law to dismiss someone for taking leave for illness, even if some of that leave is unpaid.
- If you feel you’ve been treated unfairly, talk to your manager or human resources department. Most complaints are resolved through mediation or conciliation.
- If you feel you have been discriminated against because you have cancer or are caring for someone with cancer, you may make a complaint to the Australian Human Rights Commission, the Fair Work Ombudsman, or the discrimination agency in your state or territory.
- If you think you’ve been unfairly dismissed, you can lodge a complaint with the Fair Work Commission.
- It is unlawful for your employer to treat you unfairly or threaten you because you have made a complaint about discrimination or harassment at work, or lodged an unfair dismissal claim.
Reviewed by: Carolyn Butcher, Chief People and Development Officer, Thomson Geer, VIC; Karen Hall, Clinical Nurse, Cancer Services Division, Flinders Medical Centre, SA; Deborah Lawson, Legal Policy Advisor, McCabe Centre for Law and Cancer, VIC; Phil Mendoza- Jones, Consumer; Jeanne Potts, 13 11 20 Consultant, Cancer Council VIC; Helen Tayler, Social Worker and Counsellor, Cancer Counselling Service, Belconnen Community Health Centre, ACT.