Sep 2016

How I fought displacement and redundancy to keep my job post Breast Cancer

 

Several of our patients have been subjected to workplace discrimination after their breast cancer diagnosis. Either in the form of unfair dismissal whilst on treatment, or simply a lack of understanding while trying to arrange a return to work post-treatment. We see widespread misunderstanding in the workplace that the end of chemotherapy or radiotherapy signals the end to any need for work flexibility or compassion. Many patients still struggle emotionally after the treatment for a breast cancer diagnosis and the workplace will not always instinctively be so  supportive.

This personal story is truly illustrative of the problem. If you find yourself in need of the legal or workplace resources mentioned in this personal account, you’ll find some suggested avenues at the end of the article.

Suzanne Neil

Breast Surgeon

 

Lessons learned the hard way

I nearly punched the air in triumph when I returned to work five weeks after my mastectomy to resume the corporate role I’d held for several years. I was then bewildered and disappointed when my phone stayed silent. Naively, I supposed that the management and peers who’d sent flowers to the hospital and encouraging messages as I recuperated at home would promptly welcome me back and I’d slot seamlessly into my ‘pre BC’ (Breast Cancer) routine. After a week or two, I had a nagging sense that the emails and meeting invites I’d typically receive were also passing me by.

During the ensuing weeks of mounting unease and stultifying neglect, I realised I’d been shafted in my absence - by the colleague appointed to cover my role while I was off work.

He did not copy me in on emails while I was away, then inevitably found last-minute reasons to cancel debriefs to discuss activity in my absence. With astounding gall, he simply shut me out so I couldn’t even find out what meetings or travel he continued to undertake ‘on my behalf’. I believe he ‘misinformed’ my internal clients that chemo meant that I couldn’t fly for several months. So, of course, they ‘spared me this pressure’ and didn’t check.

 

My misfortune was his ticket out of the reserves and he wasn’t going to relinquish the gig.

 

My boss underestimated the depth of ‘white-anting’ and thought the situation would resolve itself. I confronted my boss’ boss, but he had a deep disdain for any conflict so did not do the obvious thing which was to send a blunt email saying ‘thanks for your assistance, now butt out of her role’. Instead, it was eventually suggested that there was probably enough work for both of us going forward, so we could work it out. I then drafted a role description indicating how responsibilities would be split – we all met and shook hands – and it was never enforced.

In retrospect, I should have protected my patch by requesting I was copied in on all emails. Not that I intended to work or check email while recovering, but it would have ensured transparency when I returned. The most important lesson was probably from one small omission - no one emailed management and colleagues to inform them that I was back on deck feeling fine, it was business as usual and I now resumed all responsibilities (although an email had been sent with my permission when I was diagnosed). I just don’t think it occurred to my boss. I assume he thought word would rapidly get around the organisation as I once again responded to emails and phone calls. But of course, my nemesis ensured I didn’t receive these. About a fortnight after my return, I considered sending out my own email, but figured it might sound a bit lame and plaintive (a touch “look at moy”?) so did nothing.

That was a big mistake as it enabled the continuation of his subterfuge.

Several months passed (during which I had chemo, then daily radiation) and I sensed that while there was sympathy for my humiliating position, everything would be solved if I graciously capitulated and disappeared. I’d had a successful and long-standing career with the company, so while I realised I was pushing against the odds, I resolved to fight on rather than risk finding a new job (and walk out on a large accumulation of sick leave I might need if the cancer returned).

So I quietly consulted a lawyer specialising in labour and employment law who stepped me through my options. I decided it would be more remunerative to stay with the company for several more years if possible, rather than pocket the maximum I’d receive if I successfully forced the company’s hand for a settlement through legal teams, or if necessary, a court case. And of course, there’s the financial risk of mounting a case you might lose. (I didn’t qualify for legal aid or seek pro bono legal assistance). Engaging a lawyer was worth every penny. All up, it cost me around $2,000, which I was told could probably be claimed as a tax deduction for work-related expenses. However, the key benefit of engaging my lawyer was psychological.

The stress of those months was horrendous.

She called frequently, had a knack for anticipating the tactics used to undermine me, and let me vent my dismay and disgust in a safe and private environment.

At her suggestion, I kept detailed notes of relevant conversations with my boss, his boss, the interloper and other involved parties, in case we did decide to press hard. I was also quite deliberate in my choice of lawyer; if work Googled the firm, they’d realise I was not mucking around and that if a case ensued, unwelcome publicity might arise. But playing that card was always going to be a last resort as they would, of course, counter-attack. In the end, I never disclosed that I’d hired a lawyer, as we both felt it would antagonise the situation. (A tip – Don’t call your lawyer on a work mobile).

Eventually, I was offered a redundancy. Thanks to helpful coaching from my lawyer, I conducted myself in this meeting with a calm but steely resolve and rejected their offer. More meetings followed around ‘what did I intend to do’, with the subtext being that I might roll-over and take the redundancy. I kept batting the ball right back into their court, saying it was up to them to find a solution, not up to me. I think they then probably sensed that I’d ‘take the matter external’ if it dragged on. So they created a new job for me, on the same pay and conditions. I accepted it and I’m still with the company.

I share my story in the hope that it may help prevent you from being in this predicament. Or at least negotiate from a position of strength if you do. As they say, forewarned is forearmed.

I had a great relationship with my boss and good performance reviews. It never occurred to me that this could happen to me.

I didn’t bother going to HR – they are essentially there to support management. Just remember that sometimes the threats can come from of left-field and be so underhanded that it’s difficult to recognise them until the damage has been done. Take some simple steps upfront to protect your turf, such as:

  • Maintain regular contact with the company while you recuperate so they sense your keenness and determination to return;
  • Ensure you see something in writing that clearly states the duration that someone will fulfil your role in an acting capacity, plus a hand-over process;
  • Agree a ‘return to work’ plan in advance (even if this simply states that a communique will be sent out to specified parties announcing your return to full duties and clarifying how your work will be handled when you take time off for chemo or radiation).

 

Good luck – and remember that cancer can unleash an inner strength you never knew you had!

 

WHERE TO GO FOR HELP

  • Contact Cancer Council Victoria- 131120. Speak to one of the cancer nurses about a referral to the Pro Bono Workplace Advisory Services. This service is not means tested and they can advise on disclosure requirements and HR issues. They can also refer on if legal assistance is recommended but this is means tested.
  • Contact the Fair Work Ombudsman if you feel you are being unfairly treated for advice and possible investigation of the complaint. Phone 131394 or www.fairwork.gov.au
  •  Australian Human Right Commission also attends to complaints about bullying and discrimination in the workplace and promotes fairness. Phone 1300 656 419 or www.humanrights.gov.au