Today’s hearing of Cheng v Church Missionary Society Australia Limited (CMS) is a rare instance of a Christian worker taking their employer to the Fair Work Commission seeking redress in an unfair dismissal case. Nothing in this story should be taken as saying CMS is other than a highly-regarded mission agency that is well worth supporting, that does great gospel work.
As Adrian Barwick, appearing for Cheng, put it to Deputy President Cross, who is presiding in the case, “There is very little controversy – it is not disputed that the applicant (Gordon Cheng) was instructed to do his work during normal office hours, to notify his manager if he was unfit to work, and that it is not disputed that he breached these instructions.”
In 2024, Cheng was battling stage four cancer and had surgery in July, but continued to work in the communications department of the Church Missionary Society (CMS). His work included producing the monthly prayer points for the CMS missionaries around the world. Producing these out of hours despite instructions was cited as a reason for his dismissal.
The CMS case that Cheng had breached his instructions was firmly established, with the CMS lawyer, Ms Thompson, raising multiple instances of Cheng being instructed to only do his work during office hours by communications manager David Carpenter. And multiple breaches occurred: once in August 2024, and twice in September. Cheng failed to inform Carpenter that he was unable to complete his work in the hours specified, responding to email as late as 2:17am.
All of these events were confirmed by Cheng during his cross examination.
Thompson to Cheng: “I put it to you that you had been [repeatedly] told to comply with instructions.”
Cheng: “Yes.”
Thompson: “That you continued to fail to comply with instructions.”
Cheng: “What instructions?”
Thompson: “September 25, for example.”
Cheng: “That was one of a couple of documented examples.”
‘He was on two final warnings, the applicant’s (Cheng’s) personal circumstances do not provide immunity from dismissal,” Ms Thompson told the hearing. “His dismissal was proportionate, reasonable and was not harsh.”
Cheng had formed a theory that if his out-of-hours work was voluntary and unpaid, it was not a breach of his instructions. This was mistaken in law, his lawyer, Barwick, acknowledged in a closing submission.
Lisa Mercer, formerly finance director of CMS, told the hearing that she had been granted flexibility while she had a bout of Covid and gave another example of a CMS worker’s email signature stating that she did not work normal hours so she could reply at any time.
Taking the stand, Peter Sholl, International director of CMS Australia – a former missionary with a glowing reputation, credited with setting up an effective structure to spread the Moore College PTC course across South America, rebutted Mercer’s testimony, pointing out that as a senior exec she was expected to work longer than office hours, and the other worker’s job included booking worldwide travel so her job was an out of hours one.
Asked what were the reasons he decided Cheng needed to be sacked, Sholl said, “Because he had breached clear instructions on several occasions.”
Barwick: “You are referring to the normal hours of work?”
Sholl: “Correct.”
Barwick “The other was his failure to notify Mr Carpenter?”
Sholl: “Correct.” …
Barwick: “Not for a failure to meet deadlines.”
Sholl: “Yes.”
Thompson also raised a question about a disciplinary hearing in may concerning an alleged breach of the CMS social media policy by Cheng in May 2024. This involved a “key supporter” of CMS’s financial irregularities. She quickly moved off the topic.
There was a longer discussion about Cheng being performance managed previously for failing to meet deadlines, leading to Cheng focussing on that during 2024.
Barwick: “You would expect such an employee to focus on meeting deadlines. He was not dismissed for failure to do his work?
Sholl: “It is a much bigger issue than that.”
Barwick asked both Carpenter and Sholl whether they linked Cheng taking breaks and finishing his work out of hours to his illness.
Barwick:” Do you agree his medical condition caused him to be drowsy and need to take breaks?”
Sholl: That’s reasonable. I am not a doctor.”
Barwick follows up about the drowsiness.
Sholl: “He might have been up at night watching European soccer.”
Barwick: On the information that was in front of you knew there was a causal relationship between his medical condition and his need for replenishment?”
Sholl: “That’s a reasonable relationship.”
Barwick: “Did CMS ever turn its mind to extending his finishing time to allow him to take breaks?”
Sholl: “I can’t say for anyone else, but I did not turn my mind to it.”
Whether it was incumbent for CMS to suggest this sort of reasonable adjustment to Cheng is at the heart of the applicant’s case. The respondent’s case is that Cheng never asked for this adjustment.
Barwick: Do you understand that national employment standards for flexible work arrangements?”
Sholl: “In terms of the law, no.”
Barwick: “Do you understand that under the standards, an employee with a disability has a right to request flexible work arrangements?”
Sholl: “No”
Barwick: “In fairness, do you think if you are not aware of it, do you think the employees of CMS are?”
CMS has joined an employers’ association and is working through adopting employment procedures.
A letter from an oncologist received after Cheng’s dismissal suggested that taking breaks during work hours and catching up outside normal working hours would be a reasonable adjustment. Sholl agreed: “I would have considered it. it is a reasonable adjustment.”
Taken through the scenario, Carpenter agreed that accommodation would have worked – one or two hours of break and the time added to the end of the day would have been reasonable. This despite the evidence that he had insisted to Cheng the business requirements of the communications team would not allow flexible hours.
Carpenter argued that there was a real issue of trust resulting from Cheng not following his instructions – and that this would affect the smooth collaboration within the communications team.
In a submission at the end of the hearing, Barwick said he was not asking Deputy President Cross to make a finding of disability discrimination or that there was a “blackletter law” requirement for an employer to make an offer of flexibility in a case like Cheng’s. “But it is a reasonable thing to do.”
Barwick summed up categorising [Cheng’s failure to follow the instructions about hours] as serious misconduct was harsh.
Thompson responded that the applicant (Cheng) accepted:
• that there were instructions,
• that the instructions were breached,
• that they were within the manager’s prerogative,
• and that the communications team needed collaboration.
Image: Fair Work Commission video screenshot