The Fair Work Commission has upheld the dismissal of an unwell employee, finding that the employee failed to comply with lawful directions by being uncontactable during regular office hours and completing work off the clock.
Introduction
In the recent decision of Cheng v Church Missionary Society - Australia Ltd [2025] FWC 585, an employee's claim for an unfair dismissal remedy was dismissed due to his repeated failure to follow reasonable instructions, despite his timely return to work after bowel surgery.
As a refresher, to determine whether a dismissal is harsh, unjust, or unreasonable, the Fair Work Commission will consider the following factors in section 387 of the Fair Work Act 2009 (Cth):
- Was there a valid reason for the dismissal related to the person's capacity or conduct?
- Was the person notified of that reason?
- Was the person given an opportunity to respond?
- Was the person allowed to have a support person present at any discussions related to the dismissal?
- Was the dismissal related to unsatisfactory performance?
- What was the size of the employer's enterprise and would this impact on the procedures followed?
- Was there an absence of human resource management specialists or expertise which would impact the procedures followed?
- Any other matters the Commission considers relevant.
What happened in this case?
In January 2022, an editor/writer for Church Missionary Society - Australia Limited was diagnosed with stage four bowel cancer. He underwent extensive treatment which resulted in side effects including fatigue and nausea.
Before being diagnosed with cancer, the employee worked 60% in the office and 40% at home, with the expectation to be available during business hours. From September 2022, the employer noted issues with the employee's performance, including failing to meet deadlines, communicating in an untimely manner and submitting unsatisfactory work. The employer also issued a first and final warning to the employee after he made a disparaging Facebook post regarding a supporter and stakeholder of the organisation.
Following surgery in July 2024, the employee sought to return to work promptly, however, he remained unresponsive during business hours. The employer issued directions to the employee requiring him to notify his manager when he was unable to work and reinforcing that his hours of work were to be in line with normal office hours. The employer asked the employee to obtain medical information from his specialist about whether there were any issues with the working arrangements. The specialist confirmed there were no issues but stated that the employee should be able to work from home when needed.
Notwithstanding the medical clearance, the employee was often uncontactable during work hours and would send emails overnight. Each time his manager reminded him of the directions, the employee attributed lapses in communication to the side effects of his treatment.
After a period of months of continued breaches, the employer issued a letter alleging non-compliance with the directions. The employee apologised and claimed that his work outside of business hours was done voluntarily and he did not expect to be paid for it. At a show cause meeting, the employee stated that he had misunderstood the directions, but later admitted to trying to circumvent them. Due to his contradictory responses and continuous breaches, the employer considered his replies to be unsatisfactory and wrote to the employee advising of his termination for serious misconduct, paying him five weeks' salary in lieu of notice.
As a result, the employee lodged an application for unfair dismissal.
What did the parties argue?
The employee agreed that his failure to follow the directions was misconduct, however, he argued it was not serious. He contended that his dismissal was disproportionate considering his attempts to complete tasks, length of service, age, health and family circumstances.
Conversely, the employer submitted that the dismissal was reasonable due to repeated non-compliance despite the directions being reiterated on numerous occasions. Although the employer acknowledged they were sympathetic to the employee's circumstances, they could not continue his employment as it had become 'untenable'.
The Fair Work Commission's decision
The Commission considered the factors in section 387 of the Fair Work Act 2009 (Cth), concluding that the employee's dismissal was valid as his misconduct was 'not minor or trivial'. The directions were reasonable and necessary, and the employee knowingly and wilfully breached them.
The employee was afforded procedural fairness because he was notified of the dismissal and given the opportunity to respond to the allegations.
Although it was accepted that the employer did not inform the employee of his right to request a flexible working arrangement, the Commission considered it unlikely that the employee would have made a request anyway.
In finding the dismissal fair, the Commission stated, 'what greater invitation for considering such an arrangement could have been advanced than providing a copy of his job description to his oncologist and asking if there were any issues with him being able to do his job.'
The employee's application was dismissed.
Key takeaways
This interesting decision highlights some important, practical lessons for employers about managing ill or injured employees and issuing lawful and reasonable directions.
It is crucial that employers communicate their directions clearly with employees, and consider if adjustments or other flexibilities may be reasonably required.
This case also reinforces that employees who are suffering from health issues are not excused from complying with lawful directions from their employer. If support and flexibility has been made available, employees must adhere.
If you have any questions regarding any of the issues mentioned in this article, please contact our workplace relations and safety team.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
