While many employers are supportive when an
employee is affected by cancer, retaining, returning to, or finding new
employment can be difficult for some people who have or have had cancer. A diagnosis of cancer can have significant
implications for a person's work, for example: long periods of leave for treatment;
the physical and emotional toll of cancer treatments affecting a person's
ability to work; and the potential for unfair treatment on the basis of their
cancer diagnosis or history. Carers of
people undergoing cancer treatment may also be affected, particularly if they
need to take extended leave to look after a loved one or accompany them to treatment.
In the third blog of our series, we explore some of
the challenges that can arise in the employment context for people affected by
cancer and their carers. We outline how
the law currently protects people's employment rights, some of the key
complaints processes, and we end with some questions about how to make the law
work better for people affected by cancer and their carers.
Continuing Joe's story
When we last caught up with Joe (59) from Swan
Hill, he was figuring out where he was going to stay to reduce his travel and
accommodation costs while he undergoes treatment for bowel cancer. Now that his son has convinced him to stay
with him in North Geelong, Joe needs to make a decision about work. He was initially considering early retirement
because he felt uncomfortable asking his boss for two months off for treatment
and recovery, and because if his treatment wasn't successful he didn't want to
spend his final months or years working.
Joe's specialist has since told him that there's a
very high chance that his treatment will be successful and that he'll make a
full recovery and be able to return to work.
Joe decided that he would ask his employer Tony for eight weeks leave
for treatment, as he enjoys his job and wants to work a few more years at least
to be financially comfortable in his retirement. However, when he approached Tony to ask for
leave, Tony suggested that it might be best if he retire. Joe explained that he was only asking for
four weeks unpaid leave; he would also use his outstanding two weeks personal
(sick) leave and two weeks annual leave to cover his absence.
Tony said that he sympathised with Joe's situation
but he couldn't give him eight weeks leave at short notice because it would be
difficult to find someone to cover his position for eight weeks, and then just
expect them to leave when - or if -
Joe wanted to return to work. Tony's son
had expressed an interest in taking over the family business, so it might be a
good time to transition the pub management over to him.
Joe was disappointed and angry and asked for time
to consider his decision. He went home and called his lawyer. His lawyer said that Tony cannot lawfully
dismiss Joe for taking the eight weeks of leave he needs for treatment, because
the Fair Work Act:
employers from taking adverse action against employees for exercising their
workplace rights (for example, their leave entitlements); and
the dismissal of employees who take temporary absences due to illness, as long
as a medical certificate is supplied and the absence is less than three months
in one year.
His lawyer also said that cancer
is considered to be a disability under anti-discrimination laws, which means that
Tony needs to make reasonable adjustments for Joe, so that he is not
disadvantaged at work because of his cancer.
Reasonable adjustments in this case might mean granting Joe four weeks
unpaid leave to have treatment for cancer.
Joe's lawyer said that there are limited circumstances in which
employers can discriminate against
someone on the basis of their disability, including where avoiding the
discrimination would impose "unjustifiable hardship" on the employer, but he
doesn't think that Tony would have a very strong case given that Joe was only
asking for his leave entitlements and four weeks unpaid leave.
The lawyer said that Joe could seek an injunction
now to prevent Tony from taking
adverse action against him; he would need to go to the Federal Court to do this,
which could be costly. Alternatively, he
advised that if Joe is dismissed for taking leave for treatment, he would have
a range of complaints options, including:
- Making a disability
discrimination complaint to the Australian Human Rights Commission or the Victorian Equal Opportunity and
Human Rights Commission; this could result in tribunal or court action if the complaint
cannot be conciliated; or
- Making an unfair dismissal or general protections dismissal complaint
to the Fair Work Commission; if Joe chose one of these options then he'd need
to lodge the complaint within 21 days of the dismissal taking effect, which
might be difficult given that he'll probably be undergoing his treatment by
that stage. The Commission would attempt
to conciliate the dispute in a private conference, and Joe could apply to the
Federal Court for determination if the matter couldn't be resolved.
After talking with his lawyer, Joe feels really confused,
frustrated and overwhelmed by the options.
He doesn't know if he has the energy to argue with Tony or to take any
action if he is dismissed. He just wants
to focus all of his energy on getting better at this stage, and he's also not
sure that he would feel comfortable returning to work for Tony now anyway. He decides to resign.
Joe's experience reflects a situation in which only
a few people affected by cancer make employment-related discrimination
complaints or pursue Fair Work Act remedies; this makes the extent of
employment problems for people affected by cancer difficult to gauge. Anecdotally, problems are not uncommon -
particularly people with cancer being encouraged to leave their jobs, or having
their terms and conditions altered, to their detriment, upon their return. There may be a number of reasons why people
don't make complaints, including not knowing their employment rights and/or,
like Joe, not having the time or energy to make a complaint which could take
months or even years to resolve.
As part of the Making
the law work better for people affected by cancer project we're examining:
the extent of employment problems (including discrimination) for people
affected by cancer and their carers; people's knowledge and understanding of
their employment rights; employers' compliance with employment laws; and
whether the existing employment complaints processes are working for people
affected by cancer and their carers.
We're gathering people's stories through
metropolitan and regional consultations, and through an online survey about
employment challenges for people affected by cancer. We would love to hear your views, so please
complete our cancer and work survey, leave a comment below or any
comments or questions to email@example.com.
information, please check out our issues paper.