With an estimated 138,321 new cases of cancer being diagnosed in Australia last year alone, and a prediction that the figure will rise to 150,000 by 2020, it is becoming increasingly important for employers to implement practices and policies to assist employees affected by the disease.

What is cancer?

Cancer describes a range of diseases in which cells grow in an abnormal and uncontrolled way.
There are over 100 different forms of cancer, with the most common being:

• bowel
• melanoma
• lung
• breast
• prostate

There are a range of treatment options available to cancer patients including surgery, chemotherapy and radiotherapy.
Whilst there are often side effects associated with these treatment options, the latest statistics show that more 60 per cent of people diagnosed with cancer will survive more than five years after their diagnosis.

It is important that employers are prepared to assist employees following a cancer diagnosis and through their treatment. Furthermore, employers risk potential claims, such as discrimination or general protections, if they fail to appropriately manage employees with chronic illnesses.

Discussing a diagnosis

While an employee has no obligation to divulge details about their illness, it is important to encourage communication and make the employee feel well supported.

Having a conversation with an employee about their cancer diagnosis is often a daunting prospect for managers and as such, it is important to be well informed and prepared before engaging in the discussion.

A meeting to discuss a diagnosis should be scheduled to occur in a private and discrete location. An employee may become upset during the conversation so it is important that it occurs in a setting out of the view of other people.

During such a meeting, a manager may like to discuss:

• Whether the employee wants his or her colleagues to know about the diagnosis
• Whether the employee is aware of his or her leave entitlements
• How much time off the employee is likely to need for treatment and recovery and whether he or she wishes to continue work during treatment.

Employers should keep in mind, particularly if the diagnosis is relatively new, that the employee may still be making decisions about treatment options and coming to terms with their diagnosis. It should be made clear that no decisions need to be made during the initial meeting, and the purpose of the meeting is to simply initiate and encourage communication.

It is essential that the conversation is approached with sensitivity, and the employee is allowed to guide the conversation and divulge as much information as they feel comfortable with.

It is important to be mindful of the employee’s right to privacy and that information relating to their condition should not be disclosed to any other party without their consent.

Assisting with treatment

Many people undergoing chemotherapy or radiotherapy experience side effects which may impact on their ability to work. Whilst side effects vary from person to person, the most common include:

• Fatigue
• Difficulty with concentration and memory
• Nausea and vomiting
• Hair loss
• Skin rashes and sensitivity
• Diarrhoea
• Skin burns or soreness (from radiotherapy)

Employers should continue to communicate with employees whilst they undergo treatment in order to provide the adequate support needed.

Measures to assist employees during treatment may include:

• Planning for absences when the employee will need to be away from work for treatment or when they are not well enough to be at work
• Facilitating flexible working arrangements to allow employees to attend medical appointments
• Temporarily re-allocating some of the employee’s normal duties to remove demanding tasks
• Allowing the employee to spend some time working from home
• Allowing additional rest breaks, and appropriate areas to rest, throughout the day
• Arranging an ergonomic assessment to ensure the employee is as comfortable as possible whilst at work
• Moving the employee to a quieter work location if they are having difficulty concentrating
• Offering the employee access to an Employee Assistance Program (EAP) where available
• Ensuring the employee can travel home safely if they are feeling too unwell to be at work
• Offering additional paid leave
• Allowing the employee access to parking close to work
• Encouraging the employee to stay at home if they are not feeling well
• Allowing flexibility so the employee can schedule meetings during times of the day when they generally feel more energetic
• Teaming the employee up with a “buddy” who may have been through a similar experience who can provide support and keep the employee up to date with what is happening in the workplace.

Some cancer treatments may affect a patient’s immune system and make them more susceptible to infection. As such, it may be appropriate to:

• Move the employee into a more private location if situated in an open plan environment
• Allow video or teleconferences instead of face to face meetings
• Encourage other employees to stay away from work when unwell.

Employers should be mindful of the fact that different employees may deal with their cancer treatment differently. Whilst some may wish to remain as involved in the workplace as possible, others may wish to withdraw from work completely and approach their treatment privately. It is important to respect the individual wishes of each employee.

Developing a policy

Employers may wish to develop a policy in order to guide managers and supervisors in dealing with employees with cancer and other chronic illnesses.

Such a policy should include the company’s view on allowing leave, working from home, allowing flexible working arrangements, and any other assistance that may be provided.

Such a policy should not only cover employees diagnosed with cancer, but also extend to employee’s who may be caring for an immediate family member with the disease.

Financial considerations

One of the main concerns of people following a cancer diagnosis is the likely financial implications of having the disease.

Employers should attempt to relieve this stress by making the employee aware of all paid leave entitlements that the company may be able to offer to them.

If possible, employees should be assured that they will not lose their job as a result of their illness.

Furthermore, employers should provide information on possible Centrelink benefits the employee may be able to access whilst they are unfit for work.

Educating employees

Other employees may require assistance in dealing with a colleague’s cancer diagnosis. Some may find it difficult to openly discuss cancer with their colleague, which may be a result of some myths and misconceptions that may exist.

Employers should provide employees with information and assistance in understanding and dealing with their colleague’s diagnosis. In some situations, referral to an EAP may be appropriate.

Employees may also like to do something practical to assist their colleague. Such things may include, cooking meals, minding children, driving the person to treatment, shopping for groceries, or organising a fundraiser.

Dealing with death and bereavement

Despite improving treatment options, some employees who are diagnosed with cancer may die from the disease. This is likely to have a significant impact on their colleagues and other people within the organisation.

In this situation, employers should attempt to:

• Communicate with employees and inform them of their colleagues passing as soon as practicable
• Offer employees access to an EAP
• Allow grieving employees some time off work
• Appoint an employee (perhaps a HR person) as a contact person for employees to talk to
• Attempt to make arrangement to allow colleagues to attend the funeral.

Legislative considerations

Leave

An employee is entitled to access any accrued personal leave when they are unfit for work due to illness or injury, in accordance with any notice and evidence requirements prescribed by legislation or a workplace policy.

Once an employee has exhausted their personal leave entitlement, use of any annual leave they may have accrued should be considered.

A long serving employee may also have a long service leave entitlement that could be accessed during this time.

Once an employee has exhausted all paid leave entitlements, they should be allowed to proceed on unpaid leave for the period they are unfit for work.

Unlawful termination

It is unlawful to terminate an employee for a temporary absence from work due to illness or injury.

The Fair Work Regulations 2009 defines temporary absence as being a period of less than 3 months of authorised leave in a 12 month period by an employee due to personal illness or injury. The 3 month absence need not be consecutive and can consist of a number of separate and distinct absences within 12 months. If the absence extends beyond 3 months then it is not until the employee exhausts their paid personal leave entitlement that they will be considered to be outside of the temporary absence period.

Employers should be aware that if an employee is no longer within a temporary absence period, while they are exempt from claiming unlawful termination, they may be able to make a range of other claims against their employer such as unfair dismissal, discrimination or general protections.

General protections

The Fair Work Act 2009 (Cth) protects employees from being disadvantaged in their employment in particular circumstances. The Act states that an employer must not take adverse action against an employee for a discriminatory reason, including medical record.

Adverse action may include: dismissing the employee, injuring them in their employment (i.e. preventing promotion etc.), altering their position to their detriment (i.e. demotion), discriminating against the employee in employment and a range of other actions that impact negatively on the employee.

Penalties for a breach of general protections are up to $63,000 per breach for a corporation and $12,600 for an individual. Compensation for a breach of general protections is uncapped.

Equal opportunity

Equal Employment Opportunity (EEO) legislation also prevents discrimination on the grounds of medical record and physical disability.

Legislation exists at both a state and federal level which renders it unlawful to treat an individual less favourably on a prescribed discriminatory ground, so as to disadvantage them in employment. Such discrimination can be both direct and indirect.

Liability for breaches of equal opportunity legislation is not limited to the organisation, but can also extend to individuals such as directors, managers, supervisors, HR professionals and other employees.

Employers can also be found to be vicariously liable for discrimination that occurs within the workplace if reasonable steps have not been taken to prevent the discrimination from occurring.

Under Western Australian state legislation there is a compensation limit of $40,000 per EEO complaint, however there is no compensation limit under Federal legislation.

Where to find more information

Cancer Council Hotline
13 11 20
A confidential telephone service staffed by oncology professionals providing information about all aspects of cancer.

Cancer Council of Western Australia

Provides evidence-based information about cancer as well as information about prevention, research, advocacy and assistance available.

Now What?

Provides information and assistance for young people dealing with Cancer.

Look Good, Feel Better
1800 650 960

Community Service program that assists patients in dealing with the impact of cancer treatments on their appearance.

We can provide more detailed information to assist you in managing employees with cancer and other chronic illnesses. Call the Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].