The Fair Work Commission has rejected an unfair dismissal case brought by writer Gordon Cheng against the Church Missionary Society.
“I have found the Respondent [CMS] had a valid reason for the dismissal of the Applicant, and that procedural fairness was afforded to the Applicant,” Deputy President Bryce Cross wrote in his decision. “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.”
Gordon Cheng, 63, was employed by CMS as an Editor/Writer with the communications team, working on written materials for CMS publications, including Monthly Prayer Points, Checkpoint magazine, and the CMS Prayer Diary. Cheng is a graduate of Moore Thelogical College, and previously worked at Matthias Media.
He was dismissed in October 2024, following final warnings. He had been directed to work within the CMS office hours, breaching that policy by working at night, and to take sick leave when he was ill.
Cheng had been diagnosed with stage four bowel cancer in 2022 and had quickly returned to work after his surgery.
A September 2024 note to Cheng from David Carpenter, the Communications Manager, gives a flavour of how CMS was trying to manage the situation: “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…”
After Cheng continued to work out of hours, Carpenter sent a “show cause letter” to Cheng, which included:
“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 2:18 am 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.”
A different perspective was expressed in a letter from Professor Stephen Clark, Cheng’s treating oncologist.
“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, lightheadedness 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.”
However, that letter was sent in November – after the dismissal. Deputy President Cross found “that report was produced 22 days after the dismissal, and was no more than commentary after the fact of dismissal.”
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The CMS case was that “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.”
Cheng’s case was that CMS “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 that other employees, such as the Finance Director, were given more flexibility.”
Deputy President Cross responded to Cheng’s second point by saying that the Finance Director was on a different type of contract and was not given directions about her working hours.
Cross found that the directions given to Cheng about working hours were reasonable, as the communications team needed close collaboration. Cheng had been the one who wanted to return to work quickly after treatment and had been asked to consult with his oncologist to determine if there were any issues with working in the office for the required three days a week. “The Applicant [Cheng] did not contemporaneously cavil with the Directions, but rather confirmed future compliance with the Respondent [CMS].”
Cross found, however, that “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, toeither ignore, or ‘game’”’ his way around,those Directions.While the Applicant gave clear and responsive evidence, theoffer/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]..”
“The Applicant [Cheng] knowingly and repeatedly flouted the Directions.”
“His misconduct was not minor or trivial. It was in direct defiance of the Directions that were soundly based and clearly necessary… The presence of a valid reason weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.”
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The Other Cheek received some critical comments about our earlier report on the case, specifically for failing to detail an earlier instance of Cheng being disciplined by CMS and issued his first final warning.
Here’s how Cross reported that part of the case. “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.”
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The Other Cheek contacted CMS and Gordon Cheng following the publication of the decision.
Gordon Cheng said that he had felt momentary distress when he received the news yesterday, but regarded this case as all else being in the hands of God, who orders all things. He was appreciative of all who had been praying about the case.
CMS has decided not to comment.
Image: Fair Work Commission video screenshot