Mr Gordon Cheng v Church Missionary Society - Australia Limited
[2025] FWC 585
•22 JULY 2025
| [2025] FWC 585 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gordon Cheng
v
Church Missionary Society - Australia Limited
(U2024/12853)
| DEPUTY PRESIDENT CROSS | SYDNEY, 22 JULY 2025 |
Application for an unfair dismissal remedy
On 24 October 2024, Mr Gordon Cheng (the Applicant) lodged an application (the Application) in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), against the Church Missionary Society - Australia Limited (the Respondent/CMS).
The Applicant commenced employment with the Respondent on or about 14 March 2017. The Applicant was dismissed by the Respondent on 14 October 2024, due to his repeated refusal to follow the Respondent's directions.
Directions were issued to program the manner in which the Application was to proceed to hearing. In response to those Directions each party filed materials, and the materials relied upon by the parties at the Hearing were:
(a) For the Applicant, a Statement of the Applicant dated 23 December 2024, a Statement of Ms Lisa Mercer dated 20 December 2024, and an Outline of Submissions dated 24 December 2024;
(b) For the Respondent, Statements of Mr Peter Scholl and Mr David Carpenter both dated 24 January 2025, and Outlines of Submissions regarding Merits and Remedies both dated 6 February 2025; and
(c) A Statement of the Applicant in Reply, and an Outline of Submissions in Reply both dated 6 February 2025.
The matter was heard on 26 February 2025 (the Hearing). Each statement deponent was required for cross-examination.
Background
There was no real factual controversy between the parties.
The Applicant was at the time of the Hearing 63 years old. He is married and he and his wife have three adult children. The Applicant’s wife has suffered from disability and poor health for many years, and she has no capacity to perform paid employment and is financially dependent on the Applicant.
The Applicant commenced employment with the Respondent’s Communication Team on 14 March 2017 as an Editor/Writer. His duties included producing written material for CMS publications such as Monthly Prayer Points, Checkpoint magazine, and the CMS Prayer Diary. The Applicant reported to Mr David Carpenter, the Communications Manager.
On 12 August 2019, the Applicant’s employment agreement (the Contract) was updated. Relevant provisions of the Contract included:
8. Hours of Work
8.1 (Office Hours): The Organisation’s general business hours are between 9 am and 5 pm. However, the Organisation may change its opening hours from time to time in accordance with its needs. You will be notified of any such changes.
8.2 (Basis of Employment): You will be employed on the basis set out at Item 8 of Schedule 1.
8.3 (Hours of Work): You agree that your weekly ordinary hours of work are as specified in Item 9 of Schedule 1 plus reasonable additional hours. Unless otherwise authorised, your ordinary hours are to be worked during the Organisation’s normal business hours.
8.4 (Reasonable Additional Hours): Due to the nature of the Organisation’s business and your position, you agree that it is
reasonable for you to work any additional hours necessary to achieve the efficient and effective performance of your duties. Your
salary is inclusive of remuneration for any reasonable additional hours worked by you beyond your weekly ordinary hours of work.
And:
11. Performance of Duties
11.1 (Performance): You must perform your duties in a proper and efficient manner, in accordance with the position requirements and to the best of your ability. You must also use your best endeavours to promote and enhance the interests of the Organisation at all times.
Ms Mercer gave evidence regarding the terms of her employment contract, though as she was Finance Director it is notable that it contained different terms to that of the Applicant. Ms Mercer also gave evidence of the flexibility afforded to her regarding when she could perform her role.
Until the onset of COVID, the Applicant’s work hours were relatively fixed and stable (9 am to 5 pm, based at the Respondent’s office). When COVID commenced, Work From Home (WFH) arrangements became mandatory and persisted until the end of the COVID lockdowns. Although the weekly hours worked remained unchanged, no specific requirement was set for when those hours of work were to be performed, as long as online meetings were attended as required and individual meetings with other members of the Communications team were able to happen as necessary.
Post-COVID, full-time staff were required to be present at the Respondent’s office for 60% of the time, on set and predefined days. The remaining 40% of the working week allowed for WFH, with a general expectation of availability during regular working hours.
On 6 January 2022, the Applicant received a diagnosis of Stage IV bowel cancer. After some chemotherapy, emergency surgery became necessary in mid-February 2022. The Applicant had a further surgery on 12 July 2024 related to his cancer condition. He continued to experience symptoms he believed are related to his cancer diagnosis, including bouts of fatigue and nausea.
At all relevant times, the Applicant reported to Mr Carpenter, who leads and coordinates the Communications Team. The Respondent’s publication process requires collaboration, communication and teamwork between members of the Communications Team, and requires team members to regularly record their progress.
The Applicant was involved in multiple stages of the publication process. The Applicant was required to be in contact with other staff and accessible during business hours. Mr Carpenter’s description of the publication process, and the Applicant’s involvement in that process, which I accept, was as follows:
I set the publications schedule in January of each year and ensure it is communicated to all members of the Communications Team so they have advance notice of deadlines throughout the year. The publications schedule I prepare is informed by the mailing dates set by the various CMS Branches. In order to distribute printed content, the branches make appropriate arrangements in managing available resources – such as organising for volunteers to attend their premises on a particular date to help with distribution of the content. The mailing dates set by the branches correspond to these dates. It is therefore very important for me to have a reliable indication of the progress of publications and for me to notify the branches if any publications are late. The process in which publications are prepared and published wasgenerally as follows:
a. First, upon the organisation determining what publications are needed, Mr Cheng was
required to commission other people to prepare the content for the publication;b. Second, Mr Cheng would then edit the material to prepare a first draft for the publication. It is expected that this first draft should be to a standard such that if needed, the draft could be suitable for publication without further review in an emergency;
c. Third, the draft was checked by myself;
d. Fourth, as and when required, the draft would be returned to Mr Cheng with comments
and suggestions for Mr Cheng to action;e. Fifth, once the draft was at an acceptable standard, I approve the draft for distribution to CMS Australia’s regional mission directors for checking;
f. Sixth, in the event the directors require further edits, the work was returned to Mr Cheng
for the changes, before coming to myself for approval;g. Finally, following approval, the draft was then sent to our design and layout team for
editing, before coming back to myself or depending on the significance of the publication,
to Mr Sholl for final review and approval for publication.
The Applicant’s performance had been subject of informal and formal performance
management since 28 September 2022. The Respondent’s concerns included:
(a) The Applicant’s failure to meet deadlines for publications;
(b)Failing to communicate with Mr Carpenter in a timely manner when he was not able to complete work on time; and
(c) Submitting work of an unsatisfactory standard.
In April 2024, the Respondent received complaints from members of the public concerning a post by the Applicant on his Facebook account. The post identified that the Applicant worked for the Respondent and made disparaging comments about a rector of a Sydney Church which was a supporter and stakeholder of the Respondent.
While the Respondent put allegations of misconduct to the Applicant for his response, it also directed the Applicant not to post anything further about the Respondent or its stakeholders either on the Respondent’s social media accounts or the Applicant’s personal account.
On the weekend of 3-5 May 2024, the Applicant re-shared one of the previously identified posts.
The Applicant was issued a first and final warning in May 2024 for misconduct which
specifically concluded as follows:
In conclusion, I believe that the breaches of your employment contract, the Code of Conduct, the Media and Communication Policy and the lawful and reasonable directions given to you constitute serious misconduct, being both:
a) Wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment; and
b) Conduct that causes serious and imminent risk to the reputation, viability or profitability of CMS’s business.Next Steps
As a result of the above findings, and particularly the seriousness of the breaches of contract, policy and specific directions, further disciplinary action is warranted. This letter now serves as a first and final warning. Any further breaches of the above policies and directions or any other unacceptable behaviour could result in the termination of your employment.This concludes my investigation and you are now to return to your duties effective from Thursday 23 May 2024. You are expected to comply fully with your employment contract and all policies and procedures of CMS-A and to follow all lawful directions given to you. Please refamiliarise yourself with the CMS Media and Communications Policy and I will meet with you as soon as possible next week to ensure you understand what it entails.
[Emphasis added]
In the week prior to the Applicant’s surgery on 12 July 2024, and after the Applicant’s discharge from Hospital from mid-July to mid-August, there were incidents involving:
(a)Long pauses before receiving communication or updates from the Applicant during times the Respondent had understood the Applicant to be working, only to discover much later that the Applicant had not been working at those times (for varying periods including full days);
(b)The Applicant working or planning to work outside normal hours to catch up on his work;
(c)An incident in which the Applicant didn’t communicate with a colleague (or his manager) before accessing a document she was editing at the time and making other edits to it in real-time, resulting in confusion and duplication; and
(d)The Applicant’s overall output across days recorded as being worked was inexplicably low.
It is of note that the Applicant was pressing for an almost immediate return to work after his surgery. While on 27 June 2024, the Applicant advised that he would take at least the week off after his Friday 12 July 2024 surgery, he subsequently messaged Mr Cartenter on Thursday, 11 July 2024, advising “I see no obvious reason why I can’t work next week as I will just be lying in bed with a laptop and being well-cared for at RNS Private…”.
On 19 August 2024, the Respondent issued the following Directions to the Applicant verbally and in writing:
When the Applicant was unable to work, he needed to notify Mr Carpenter as soon as possible and take leave; and
The Applicant’s hours of work needed to be in line with normal office hours – starting between 7:30am-9:00am and finishing eight hours later. There was to be no more working out of hours to catch up (the Directions).
The written expression of the Directions was as follows:
Glad to hear you are improving. Further to our conversation earlier this afternoon, here is what we discussed going forward.
• The current ad-hoc arrangements for missing work when you are unable to work and
playing catch up can’t continue. When you are unable to work, you need to notify me as
soon as possible and take leave. We are happy for you to take unpaid leave as necessary
when your personal and annual leave has run out. There is to be no more working out of
hours to catch up. Accordingly, we will take it that on days when you are at work, you are able to perform at full capacity in terms of quality and quantity of work and to be
available during normal work hours.• We need you to head towards working in the office 3 days a week as per the WFH procedure.
• Your hours need to be in line with normal office hours, that is starting between 7:30-9
and finishing 8 hours later with a 1-hour lunch break.• During your meeting you indicated that you believe you are fit to work but that you would check with your oncologist, who you are seeing tomorrow, and get back to me. I agree that it is a good idea to chat to them about work. When you see them could you please give them your position description (see attached) and ask if there are any issues with you being able to do your job, including working in the office 3 days a week. It would be great to have their opinion in writing.
• Regarding your appointment tomorrow, given the above points, can you please make
sure you log leave for the duration of the appointment.If you have any questions, please let me know.
[Emphasis added]
The Applicant acknowledged the Directions and that he understood they were to assist him in returning to a normal pattern of work.
Mr Carpenter’s evidence as to why he issued the Directions, which I accept, was as follows:
I made the decision to issue the Directions to achieve the following objectives:
a. First – issuing the Directions would provide myself and the Communications Team with greater certainty as to when Mr Cheng was or was not working. This is important since (as set out above) Mr Cheng’s role is not a stand-alone role, but rather, is part of a process. It requires close collaboration with team members. This would also mean that during Mr Chen’s working hours (while not on leave) would more closely align with CMS Australia’s usual working hours and he would be able to access and be accessible to other team members for discussion.
b. Second – I believed if the Directions were followed, I would know as early as possible when Mr Cheng was not able to work, and in turn, that would give me an opportunity to develop informed strategies to keep work on track for completion within deadlines;
c. Third – Mr Cheng was still subject to a performance management process. I believed this measure would allow us to better understand the quantity and quality of work Mr Cheng was able to achieve in a measured block of working hours with real-time access to support from myself and the Communications team. This would in turn, assist also me with informed strategies to keep work on track for completion within deadlines; and
d. Fourth – Mr Cheng had advised that he was still recovering from the surgery (albeit
recovering well). I was also concerned not to pressure Mr Cheng to attempt to work beyond his capacity, including work outside of normal business hours or continuing work
on tasks that had been allocated to other people. I believed that the Directions would strike an appropriate balance between facilitating Mr Cheng’s need for time off when unwell and the operational requirements of the Communications Team.The Directions were also consistent with the CMS Australia’s leave policy (annexed as “X”), which requires staff to notify their manager as soon as possible of the circumstances for needing to take personal/carers leave, Mr Cheng’s employment contract, and the flexible start time he had been granted (in approximately 2022) following a request from Mr Cheng to accommodate his health condition.
The following morning, at 4:38am on 20 August 2024, the Applicant emailed Mr Carpenter advising as follows:
As to your last point, Tuesdays would normally be a WFH day that allows a degree of flexibility. Today, for example, my oncologist appointment runs from approx. 9.20-9.40 am plus travel time on either side. However, it is now 4.35 am and I have begun work for the day. So I am not sure how to log this as leave. It doesn’t fit with my previously established WFH pattern, i.e. in the office on Mondays, Wednesdays, and Thursdays, with some flexibility on Tuesdays and Fridays.
Apart from that, I will certainly discuss matters with the oncologist today and get back to you accordingly.
[Emphasis added]
On or about 20 August 2024, the Applicant provided to the Respondent a handwritten note from his Oncologist. While that note is difficult to read, it appears to state, variously:
I have discussed [the Applicant’s] capacity to work, following review of his job description.
And:
Outside of an unexpected/unpredictable complaint, I see no issue with him returning to work at the usual capacity. I think it would be reasonable to give flexibility with working from home until the end of Sep’ 2024.
Later on 20 August 2024, at 5.51pm which was outside the Respondent’s business hours, Mr Carpenter emailed the Applicant advising as follows (with all emphasis being in the original):
Hi Gordon,
Thank you for your email this morning and updating me with the written advice from your
oncologist. It is encouraging to hear you are recovering well.In terms of your email this morning, I’m very happy to afford you the same degree of flexibility we afford all staff in relation to appointments, but you need to understand that needs to be in line with our policies and procedures. Our WFH procedure makes reference to working hours flexibility, but this is in the context of things arising “unexpectedly” and requires a discussion with your supervisor in advance. You mentioned your appointment yesterday, and now that I understand it was only a short appointment, I’m happy to allow you flexibility with working around that. However, going forward, things like this need to be clearly discussed, preferably arranged within the existing flexibility on working hours, and agreed with me in advance as per our procedure, so that I can know what hours you are and are not working. As you are aware,
there is already a degree of flexibility in connection with our working hours, with the ability to start anywhere between 7.30am and 9.00am. However, our business needs mean that we can’t extend that flexibility further. It is not intended to allow people to start and finish whenever it suits them.Further to that, in the email I sent you yesterday summarising our discussion, I thought I made it clear that on days when you are working, I need you to be available during normal work hours and specifically that your hours need to be in line with normal office hours, that is starting between 7:30-9 and finishing 8 hours later with a 1-hour lunch break. However, on receiving that instruction, presumably early this morning, you immediately undertook work outside these hours, sending me an email at 4.38am. It would appear from this behaviour that you do not understand the instruction I gave you, and that this instruction applies regardless of where you are working.
To be as clear as possible - going forward you need to understand that if you are fit to work (i.e. you haven’t let me know you are unfit to work), you must be performing your work during normal office hours (i.e. starting between 7:30-9.00 and finishing 8 hours later with a 1- hour lunch break) whether you are in the office or working from home. This is crucially important for our ability to function as a team. For this reason, I need to make it clear that in future, any work outside these hours is unauthorized and will not be paid. Further, it could be considered a breach of a lawful and reasonable direction, leading to further disciplinary action, and in this regard, I need to remind you that you are already under a first and final warning for misconduct.
Please let me know if any of this is unclear.
Following the written advice from your oncologist, I am happy to allow you flexibility to work from home on any days you need to until the end of September. However, on all days when you are working from home, this needs to be in line with our policy as set out above and in my email yesterday. That is, as I understand it, the flexibility needed is in relation to your location of work. It is not in relation to your hours. If this is not your understanding, then further clarification may be needed from your doctor. If you have any questions, please email me and I will get back to you as soon as possible. It is not in relation to your hours. If this is not your understanding, then further clarification may
be needed from your doctor.
If you have any questions, please email me and I will get back to you as soon as possible.
The following day, 21 August 2024, the Applicant commenced work in the office prior to his pre-arranged flexible start time and left work prior to the corresponding authorised finish time. Mr Carpenter emailed the Applicant at 3.18pm that day advising:
I want to restate once again from the email I sent yesterday – the earliest time you can start your workday is 7:30am. Normal office hours are starting between 7:30-9am and working for 8 hours, including a 1 hour lunch break. Any work outside these hours is unauthorized, and will not be paid.
Tomorrow if you are in the office, if you are in, I would expect you to leave no earlier than 3:30pm (if you start at 7:30am)
If there is a medical need for this to be different, we will need that in writing from a doctor.
On 4 September 2024, Mr Carpenter had understood the Applicant was working from home. Mr Carpenter had exchanged messages with the Applicant until 10.30am including about urgent work the Applicant advised he would be submitting soon. Mr Carpenter sent a message to the Applicant to check in on the urgent work at 3.21pm.
When Mr Carpenter commenced work on 5 September, he discovered emails had been sent from the Applicant overnight at 8.12pm and 2.18am and included the urgent work. The emails did not explain why the Applicant was working during the night.
Mr Carpenter met with the Applicant on 5 September 2024 to query his lack of communication during working hours on the afternoon of 4 September, and his MS Team message and email at 8:12pm on 4 September 2024 and 2:18am on 5 September 2024 respectively. In that meeting, the Applicant claimed that he felt unwell around midday 4 September 2024, and so he stopped work and lay down to sleep. The Applicant said he then woke up later that evening and felt he was caught between a “rock and a hard place” so he worked until after 2:00am to complete the prayer points.
The Applicant subsequently wrote to Mr Carpenter on 6 September 2024, advising:
Thanks for our chat yesterday. I appreciate that you gave me the opportunity to respond to your concerns, and I apologise for giving you those concerns in the first place.
Yes, I was sick on Wednesday afternoon. I lay down for a brief time, fell asleep and woke up at about the time I responded to your communication, which as I check Teams was at 8.12 pm. I made the decision that it was not right to call you at this time.
It seems to me that I should apply for leave for Wednesday afternoon, and will do that now.
I recognise that I can’t and shouldn’t expect to be paid for work outside of normal negotiated working hours. I offer the time outside of normal work hours as a volunteer, and don’t expect to be recompensed. My motivation in this instance was that MPP needed to be done, and I didn’t want to add to your load by calling you out of hours to ask permission to do this.
Today I continue to Trello. Connect is close to being able to send apart from font weirdness and the possible inclusion (allowing for security concerns) of baby photos. I’ll have another look but it is basically ready for your check.
[Emphasis added]
Mr Carpenter responded to the Applicant in an email also dated 6 September 2024, which included in part the following (with all bold emphasis being in the original, and underlined emphasis inserted by the Commission):
Following on from events on Wednesday, our conversation yesterday and your email this
morning, I need to make clear to you that both your lack of notification to me of your unfitness for work and your performance of unauthorised work outside your normal office hours are unacceptable.On 19 August 2024, I sent you an email in which I issued you with the following directions:
1. “When you are unable to work, you need to notify me as soon as possible and take
leave.”
2. “Your hours need to be in line with normal office hours, that is starting between 7:30-9 and finishing 8 hours later with a 1-hour lunch break.”This second direction was reiterated to you on 20 August 2024 (after you had already breached it) in the following terms:
“if you are fit to work (i.e. you haven’t let me know you are unfit to work), you must be
performing your work during normal office hours (i.e. starting between 7:30-9.00 and
finishing 8 hours later with a 1-hour lunch break) whether you are in the office or working from home”.….
Given that you are already on a first and final warning for not complying with our directions, which indicated that “any further breaches of the above policies and directions or any other unacceptable behaviour could result in the termination of your employment”, it would seem that your breaches on Wednesday could constitute grounds for the termination of your employment. However, we note the contrition in your email and your commitment to comply with our directions in the future, and therefore on this occasion we have decided to extend to you one final chance. You need to understand though that this cannot happen again. Any further breaches of any CMS policies and/or directions or any other unacceptable behaviour could result in the termination of your employment.
… [Emphasis added]
In response to the above email, and two minutes after that email was sent, the Applicant responded by email, the totality of which, excluding salutations and signatures, was:
I acknowledge the concerns noted.
Between 7 and 10 September 2024, the Applicant emailed Mr Carpenter a number of times, with the most salient part of his position being put in an email of 9 September 2024, which included the following:
Do you get that I am actually sick?
And that although recovering, I will sometimes fall asleep for hours at a time and so be unable to tell you that I am asleep and unable to communicate that I am not working? This will contribute to some slowness. I have explained this in writing in a previous email.
You seem to think that my action in response to your concern was a deliberate provocation.
It was not. I was sick and asleep.
I am offended and upset by this process. In my view you have handled the last month very
poorly indeed, and I expect to report this accordingly as part of an end-of-year performance review. I am deeply disappointed by your threat of termination, and will take this into account as we continue our conversation.Please note that this message was sent within normal work hours, as discussed in our Teams message this morning.
Mr Carpenter met with the Applicant on 13 September 2024 to discuss his performance and sent him an email to summarise their discussion. That email included the following:
In relation to the claims you made about your work being impacted by you being unwell, I note the following:
1. We have advice from your oncologist dated 20 August that indicates you have been fit to work at normal capacity since that date.
2. I have repeatedly made clear to you that we appreciate that from time to time you, like everyone else, may feel unwell, and if that happens, it is perfectly acceptable, and you can, and indeed should, take time off to rest and recover. However, I have also repeatedly explained to you that you need to inform me about it at your earliest opportunity. Where this is the case, your performance will be judged having regard to the reduced time available as a result of illness. You will not be penalised because of your illness.
3. Having said the above, I note that you have only taken one afternoon of personal leave since your oncologists note on 20 August, and that was after the original Connect deadline. I do not consider this absence sufficient to account for the delay in Connect being sent out.
In light of the above, I trust you can understand that I do not accept your responses in relation to the delays in delivering the Connect email. This will be taken into account when we meet on 23 September to discuss your performance.
On 24 September 2024, Mr Carpenter received a note from one of the Applicant’s Oncologists, who confirmed it was highly encouraged for the Applicant to be allowed to travel to and from work during off peak hours. The arrangement allowing the Applicant to leave work at approximately 3:00pm had already been in place since 2022.
On the morning of 25 September 2024, Mr Carpenter received two emails from the Applicant at 4:36am and 4:41am respectively. The Applicant inserted at the conclusion of the second email:
(By the way, please treat these out of hours emails as a donation of time to CMS. I’m not expecting that they would have any impact on my normal negotiated working hours)
Mr Carpenter decided to escalate the Applicant’s non-compliance to Mr Sholl, the Chief Executive Officer of CMS, but before they could respond, the Applicant sent an email at 4.12pm on 27 September 2024, that concluded as follows:
[Working outside normal hours, so this is a donation of time. I don’t think I want to say this statement regularly, but always ready to discuss].
On 1 October 2024, the Respondent issued the Applicant a letter dated 30 September 2024, with allegations that his actions on 25 and 27 September 2024 breached the Directions. He was given the opportunity to respond and show cause (the Show Cause Letter). The Show Cause Letter included the following:
…
2. The behaviour would be in express breach of two final warnings you have been given.
You are no doubt aware that you were issued a first and final warning about your behaviour on 22 May 2024 which included a clear indication that:
“any further breaches of the above policies and directions or any other unacceptable behaviour could result in the termination of your employment.”
On 6 September 2024, after you repeatedly breached the instruction about your work hours (including sending Prayer Points to me at 2:18am on 5 September 2024), you were advised that “your breaches … could constitute grounds for the termination of your employment”. You were given a final chance:
“However, we note the contrition in your email and your commitment to comply
with our directions in the future, and therefore on this occasion we have decided to
extend to you one final chance. You need to understand though that this cannot
happen again. Any further breaches of any CMS policies and/or directions or any
other unacceptable behaviour could result in the termination of your employment.”
3. The behaviour would also constitute a breach of our Code of Conduct
Clause 1 of the Code of Conduct specifically states that you will “Abide by all CMS policies, procedures and directives”.
The Applicant was provided an opportunity to respond in a meeting with Mr Carpenter and Mr Sholl on 1 October 2024. Prior to that meeting occurring the Applicant sent an email to Mr Carpenter and Mr Sholl. That email included the following:
My actions in sending emails outside of work hours was based on a genuine misunderstanding on my part, which I acknowledge and for which I take full responsibility. I am very sorry for my misunderstanding.
I offer the following observations with a desire to provide some context for my actions.
In doing so I don’t mean to lessen my genuine regret or apology over actions stemming from my misunderstanding. I have no wish to ignore or circumvent directions regarding my CMS work, and in the last month have made every effort to comply with such instruction as I have understood them (or as I have now acknowledged, misunderstood).
And:
If I have thought about this at all, I have viewed ‘extra-curricular’ activity as entirely voluntary in nature and as undertaken in my own time.
Mr Carpenter and Mr Sholl then met with the Applicant later on 1 October 2024. During the meeting, the Applicant gave what Mr Carpenter considered to be a series of contradictory responses. The Applicant claimed he had misunderstood the Directions, that his understanding of them were vague, and that he did not think what he was doing was a problem. The Applicant then claimed that in attempting to pass off the recent work as a donation of time, he was seeking a way to “slip past this regulation [the Directions]”. The Applicant then made comments to the effect of him having no desire to ignore or circumvent the Directions.
Mr Carpenter and Mr Sholl considered the Applicant’s responses to be unsatisfactory. Given the significant number of reminders and warnings to comply with the Directions, they found it implausible that the Applicant could have misunderstood the Directions. Additionally, the Applicant conceded that he was attempting to find a way to get around the Directions.
The Applicant acknowledged during the meeting that there had been other occasions, but he could not say how many times, on which he had been sleeping during work time attempted to make up work outside of his authorised work hours, however the Respondent’s records showed that since 20 August 2024, there was only one occasion on which the Applicant had taken personal/carer’s leave, being 4 September 2024.
The Respondent wrote to the Applicant on 8 October 2024 advising its view that the Applicant had breached the Directions, and that breach had been deliberate and unacceptable in light of the final warnings he had been issued. The Respondent invited the Applicant to show cause why his employment should not be terminated.
The Applicant replied in writing and in person at a meeting also attended by his support person on 11 October 2024. A record of that meeting was kept, and an exchange at the commencement of that meeting was instructive as to the position taken by the Applicant at that meeting.
Mr Sholl: The thing I want to ask – the findings we asked you to respond to - what you’ve written is interesting background - health, family history – but doesn’t respond to the findings. The findings were 2 clear instructions:
When you are sick you need to take leave. And the finding was you didn’t.
You need to work within work hours. And the finding was you didn’t do that.
Those 2 findings. Are they lawful and reasonable?The Applicant: Certainly – lawful in the sense of clear, well put along the lines of authority. Reasonable - I think that’s one of things. At the level of policy discussion, CMS might say lets look at our directions and instructions and say is it really reasonable. Its lawful and reasonable to say you are kitchen duty on Thursdays. If I don’t do it – I haven’t followed a lawful and reasonable direction. It’s not a sackable offense. It’s a “gee you are irritating us Gordon”.
It is similar to the question of working in hours of 9-5.
My concerns are not motivated by any desire to circumvent or get around or annoy people.
One time I said caught between a rock and a hard place. I needed to get the work done and needed to push through. Didn’t call Dave at dinner time. I intended to not annoy people. And intended to help
As to leave. Admin is in that area of keeping track of hours.
I accept failing in that area. I wasn’t trying to circumvent anything.Mr Sholl: The 2 specific instructions – do you think they fall in the category of “unstack the dishwasher”.
The Applicant: On the spectrum – closer to that. As opposed to closer to taking money from the kitty.
[Emphasis added]
After the above meeting, Mr Sholl and Mr Carpenter discussed the Applicant’s responses, and Mr Sholl made the decision to terminate the Applicant’s employment on the basis of serious misconduct. That decision was conveyed to the Applicant in a further meeting on 14 October 2024. The Applicant also received a termination letter on 14 October 2024.
Later in the evening of 14 October 2024, the Applicant sent all staff of the Respondent an email that included the following:
I have been told that my employment as CMS Australia has been terminated, effective
immediately.The two reasons supplied were
1. Working outside of expected work hours, despite repeated clear instructions not to do
so.2. Failing to correctly log PC leave, despite clear instructions to do so.
The letter received did not specify any other reasons.
Both reasons are true and accurate, and so I offer apologies to those most affected by this.
On 5 November 2024, the Applicant received a report from Professor Clarke, one of his Oncologists, that stated:
To Whom It May Concern,
RE: Name: Gordon CHENG
Gordon is a current patient under my care with stage IV bowel cancer, as diagnosed in
January 2022. His treatment has been effective to this point but is ongoing.Side effects that have occasionally impacted his work over the last two-and-a-half years
include fatigue, nausea, light headedness and reduced physical strength. He has also required hospitalisation on several occasions.His most recent hospitalisation was for major surgery under general anaesthetic in July 2024. Because of his ongoing cancer treatment, his recovery has been steady but slightly slower than expected.
I believe that in mid-October he was dismissed from his employment as an editor due to some failures to work within set working hours and to adequately record sick leave according to his employer's requirements.
As his treating oncologist I am concerned by this dismissal and believe it to have been
unwarranted and harsh given his ongoing, but well-managed, health concerns. Additionally, it would have been helpful permitting Gordon to take breaks inside normal hours when he is feeling unwell and then have flexibility to catch up outside normal work hours to ensure his duties are met.
Applicant’s Submission
The Applicant conceded that his failure to follow the Directions was an act of misconduct, but not serious misconduct that constituted a valid reason for dismissal. The conduct was not serious misconduct as defined by the Fair Work Regulation 1.07.
The Applicant submitted the reasons given for the dismissal were breaching the Directions not to work outside normal hours (First Reason) and to notify Mr Carpenter when he was unfit for work and to take leave (Second Reason).
Regarding the First Reason, the Applicant admitted the conduct, but submitted there was no sound, defensible, or well-founded basis for the Respondent to conclude that the Applicant engaged in wilful and deliberate refusal of a direction by sending work emails outside of normal hours after 5 September 2024. Regarding the Second Reason, the Respondent submitted it had no basis in fact
The Applicant submitted the dismissal was harsh and disproportionate having regard to the nature of the conduct, the fact the Applicant was attempting to complete his duties, the Applicant’s length of service, age, health, and family circumstances.
The Applicant further submitted the dismissal was unjust because the Respondent:
(a) made no attempt to reasonably accommodate the Applicant’s disability by permitting
him to work his hours with a degree of flexibility when he was feeling temporarily unwell; and
(b) did not treat him fairly compared to other staff, particularly Ms Mercer, who were routinely permitted or required to work ordinary hours and additional hours outside of the standard office hours.
Regarding the above reasonable accommodation of the Applicant’s disability, the Respondent submitted that in the relevant period in 2024, the Applicant had a disability and was 55 or older and so came within the circumstances of section 65(1A) of the Act. Further, there is no evidence that the Respondent had a policy that informed its employees of their right to make a statutory request under section 65(1A) of the Act or the internal process to follow, although the Applicant acknowledged receipt of the Fair Work Information Statement when he commenced employment.
As a result of the numerous communications between the Applicant and Mr Carpenter in 2024, particularly the circumstances of 4-5 September 2024, a reasonable employer in the position of the Respondent ought to have advised the Applicant of his right to make a statutory request to change his working arrangements relating to circumstances, in particular, the disability manifested by his cancer diagnosis.
The Applicant submitted the report of Professor Stephen Clarke dated 5 November 2024, indicates that he would have supported a request for the Applicant to “take breaks inside normal hours when he is feeling unwell and then have flexibility to catch up outside normal work hours to ensure his duties are met”.
Respondent’s Submission
The Respondent submitted that the Applicant was dismissed on misconduct grounds due to his non-compliance with the Directions issued on 19 August 2024 (both verbally and in writing), and reiterated in writing on 21 August, 6 September, and 13 September 2024, requiring him to notify his manager as soon as possible when he was unable to work, and to confine his work to normal working hours.
Determination of whether the Directions were reasonable does not require the Respondent to demonstrate that the direction issued was the preferable or most appropriate course of action, or in accordance with best practice or in the best interest of the parties.
The Respondent submitted that the Commission should find that the Directions were
reasonable and lawful, including for the following reasons:
(a) The Directions were consistent with the Respondent’s Leave Policy, Work From
Home procedure, and the Applicant’s employment contract;
(b) The Applicant’s work was part of an interdependent team requiring close collaboration;
(c)The Directions were issued in the context that some of the Applicant’s absences were only reported after inquiries from the Respondent about the status of his work.
(d)The Directions would assist Mr Carpenter to achieve his objective of understanding the Applicant’s work-speed while in recovery in order to inform his planning; and
(e)The Directions were not inconsistent with the medical advice from the Applicant’s Oncologist and were adjusted to accommodate certain flexibility requested by the Applicant’s Oncologist.
The Applicant’s admitted misconduct was not a minor failing or trivial misdemeanour, and the Commission should find that the Respondent had valid reason to dismiss the Applicant.
The Applicant was given an opportunity to respond to the reasons for dismissal during
the show cause meeting, and he also provided written responses.
The Respondent submitted it is a smaller organisation consisting of approximately 20 staff. The Respondent does not employ any dedicated human resource management specialists or any staff with expertise in employment law.
The Respondent noted the Applicant argues that the conduct was not serious misconduct as defined by Fair Work Regulation 1.07, and accepts the seriousness of the Applicant’s misconduct is relevant to the issue of whether the dismissal was a proportionate response to the conduct in question.
The Respondent submitted that serious misconduct in the Fair Work Regulations includes wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment, and refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. The Respondent noted that both were features of the Applicant’s conduct.
Regarding the Applicant’s submission that the Respondent made no attempt to reasonably accommodate the Applicant’s disability, the Respondent submitted:
(a) The Respondent implemented every accommodation requested by the Applicant in
relation to his health conditions;
(b) Mr Carpenter advised the Applicant that should further adjustments be required,
he was invited to provide medical advice to support any such requests; and
(c)After issuing the Directions, Mr Carpenter advised the Applicant that if he held a different understanding of the Oncologist’s flexibility request he should arrange clarification from the Oncologist. The Respondent never received any requests nor clarifications from the Applicant’s Oncologist other than the note and letter provided in the Respondent’s evidence.
The Respondent submits it was sympathetic to the Applicant’s health, family and personal circumstances, but could not continue his employment which had become untenable. To mitigate the impact of summary dismissal on the Applicant, the Respondent paid him the equivalent to five weeks’ notice.
The Applicant’s contention that he wasn’t treated fairly compared to other staff seemingly relates to the evidence of Ms Mercer but the difference between her working arrangements and those of the Applicant were clear.
Consideration
There are no jurisdictional objections to the Application being determined by the Commission. Specifically, I am satisfied that:
a)the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));
b)his unfair dismissal application was lodged within the 21-day statutory time limitation found at s 394(2) of the Act;
c)the Applicant is a person protected from unfair dismissal in that he had completed the minimum employment period set out in ss 382 and 383 of the Act;
d)his dismissal was not a case of genuine redundancy (s 385(d)); and
e)his dismissal was not a case involving the Small Business Fair Dismissal Code, as the Respondent employs between 20 and 29 employees (s 385(c)).
Section 387 of the Act outlines the factors to be considered in determining whether a dismissal was harsh, unjust or unreasonable. The matters to be taken into account are:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant.
Section 387(a) - whether there was a valid reason(s) for the applicant’s dismissal
In Rode v Burwood Mitsubishi,[1] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd[2](Selvachandran). The Full Bench found:
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
In Sydney Trains v Hilder (Hilder),[3] the Full Bench of the Commission observed in relation to s.387(a):
The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.
The Applicant admitted his failure to follow the directions not to work outside normal hours, and to notify Mr Carpenter when he was unfit for work and to take leave, was an act of misconduct, but not serious misconduct that constituted a valid reason for dismissal.
Incidents in the week prior to the Applicant’s surgery on 12 July 2024, and after the Applicant’s discharge from Hospital from mid-July to mid-August, resulted in the Directions being given. I find that the Directions were reasonable in the circumstances in the circumstances. That is because:
(a)The Applicant was part of an interdependent team requiring close collaboration. The Directions facilitated transparency about when the Applicant was/wasn’t working, as well as communication with colleagues during mutual working hours;
(b)In the written expression of the Directions, the Respondent had provided the Applicant with a copy of his job description to give to his Oncologist the following day and “…ask if there are any issues with you being able to do your job, including working in the office 3 days a week. It would be great to have their opinion in writing”;
(c)It was the Applicant who was pressing for an almost immediate return to work after his surgery;
(d)The Directions were consistent with the provisions of the Respondent’s Leave Policy, Work From Home Policy and the Contract; and
(e)The Applicant did not contemporaneously cavil with the Directions, but rather confirmed future compliance with the Respondent.
From 19 August 2024, the date the Directions were issued verbally and in writing, the Applicant was fully aware of the terms of the Directions. The Applicant chose, however, to either ignore, or “game” his way around, those Directions. While the Applicant gave clear and responsive evidence, the offer/claims that work out of hours was voluntary and not subject to payment was disingenuous. As the Applicant conceded, he was seeking a way to “slip past this regulation [the Directions]”.
On 4 to 5 September and 25 September 2024, the Applicant knowingly breached the Directions. His misconduct was not minor or trivial. It was in direct defiance of the Directions that were soundly based and clearly necessary. As outlined in Hilder, whether the conceded misconduct amounted to serious misconduct as defined in the Fair Work Regulation 2009, is irrelevant. The presence of a valid reason weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
Section 387(b) – Notification of the reason for the dismissal
The Applicant was notified of the reason for the dismissal in letter dated 10 October 2024. That correspondence outlined a detailed explanation of reasons. This is, however, a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.
Section 387(c) – Opportunity to respond to any reason
The Applicant was given an opportunity to respond to the reasons for dismissal during the show cause meeting, and he also provided written responses. This is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.
Section 387(d) – Unreasonable refusal by the employer of a support person
The Applicant was invited to, and did in fact bring a support person to the show cause meeting.
Section 387(e) – Unsatisfactory performance
The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.
Sections 387(f) and 387(g) – The size of the employer’s enterprise/human resources
The Respondent is a smaller organisation consisting of approximately 20 to 29 staff. The Respondent does not employ any dedicated human resource management specialists or any staff with expertise in employment law. I nonetheless consider the size of the Respondent would not have affected the procedures followed in effecting the dismissal. This is a neutral factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.
Section 387(h) – Other relevant matters
(a) Dismissal Disproportionate
I do not accept that dismissal was disproportionate in this matter. The Applicant had wilfully and deliberately behaved in a manner inconsistent with the continuation of the Contract, notwithstanding numerous clear warnings, and his conduct satisfied the definition of serious misconduct. Nonetheless, he was paid five weeks notice on a discretionary basis.
The Applicant knowingly and repeatedly flouted the Directions. Were dismissal to have flowed from the initial breaches on 20 and 21 August 2025, of the Direction given on 19 August 2025, the Applicant would have had greater cause for complaint. However, the Applicant received further reinforcement of the Directions, and the consequence of their breach, on 6 and 13 September 2025.
The Applicant submitted that even if serious misconduct were found, summary dismissal would be disproportionate having regard to the circumstances that led to the dismissal, the Applicant’s length of service, his personal circumstances including his age, health and family circumstances, the impact upon his future employment prospects, and non-payment of pro rata long service leave.
While it is only natural for reference to be made to the serious illness suffered by the Applicant, and the surgical procedure that took place, I do not consider that or any other of the matters, or combination of such matters, relied upon by the Applicant ultimately weigh in favour of the dismissal being harsh, unjust or unreasonable due to the circumstances that led to the dismissal.
I note that long service leave was in fact paid on a proportionate basis,[4] and consider dismissal was proportionate in the circumstances.
(b) Differential Treatment
I do not consider there was differential treatment between the Applicant and Ms Mercer, or other staff. Ms Mercer was employed under a maximum term contract in the position of Finance Director, and she led the Finance Team. Ms Mercer was not issued directions relating to her working hours.
Ms Mercer was part of the Senior Staff team that consists of directors and collectively, is responsible for the entirety of the organisation. The Senior Staff Team is expected to be able to respond in real time to any emergency situations with any CMS missionaries from around the world and may have to work outside of CMS Australia’s usual business hours. That is not the same for the Communications Team.
(c) Statutory Right to Request a Flexible Work Arrangement
Accepting that the Applicant came within the circumstances of s.65A of the Act, and that the Respondent did not inform its employees of their right to make a statutory request under section 65(1A) of the Act (though it did Fair Work Information Statement when the Applicant commenced employment), I find that circumstances in the paragraph [75] above, also disclose the unlikelihood of the Applicant ever advancing a request for a flexible working arrangement.
What greater invitation for considering such an arrangement could have been advanced than a providing a copy of his job description to give to his Oncologist and asking if there were any issues with his being able to do his job? While the report of Professor Clarke dated 5 November 2024, indicates that he would have supported a request for the Applicant to “take breaks inside normal hours when he is feeling unwell and then have flexibility to catch up outside normal work hours to ensure his duties are met”, that report was produced 22 days after the dismissal, and was no more than commentary after the fact of dismissal.
Conclusion
I have made findings in relation to all matters specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I have found the Respondent had a valid reason for the dismissal of the Applicant, and that procedural fairness was afforded to the Applicant. There were no other relevant matters that tended to make the dismissal harsh, unjust or unreasonable. I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Barwick, on behalf of the Applicant.
Ms P Thompson, on behalf of the Respondent.
Hearing details:
26 February 2025.
10AM.
In-Person.
[1] Print R4471, at [18] and [19].
[2] (1995) 62 IR 371
[3] [2020] FWCFB 1373, at [26].
[4] Transcript PN 734.
Printed by authority of the Commonwealth Government Printer
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