Making the law work better for people affected by cancer: employment

Wednesday 4 September, 2013
by Deborah Lawson and Sondra Davoren

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:

  • prohibits employers from taking adverse action against employees for exercising their workplace rights (for example, their leave entitlements); and
  • prohibits 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 deborah.lawson@cancervic.org.au

For more information, please check out our issues paper.

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