The Fair Work Commission has upheld the dismissal of a Sydney editor who was let go for working irregular hours while recovering from bowel cancer. The editor wanted to get back to working as soon as possible following chemotherapy. His oncologist argued to the Commission that he would’ve benefited from flexible hours given his fatigue and nausea.
However, the Commission decided that because the editor had disobeyed directions not to work outside of normal work hours, his dismissal was fair. In this article, we’ll look at the events of this Fair Work Commission case – Mr. Gordon Cheng v Church Missionary Society – Australia Limited [2025].
We’ll also look at another story of a worker who had her job given to a colleague while she was on leave to receive chemo, which led her to win an $AU2.4 million payout.
Worker recovering from cancer dismissed for irregular hours
Sixty-three year-old Gordon Cheng began working as an editor with Church Missionary Society in Sydney in March 2017. His employment contract specified that he had to work during normal business hours (9 am to 5 pm) plus “reasonable additional hours.” Following the Covid-19 pandemic, Church Missionary Society introduced a hybrid model requiring full-time staff to be in the office 60% of the time. The remaining 40% WFH days carried a “general expectation” of being available during regular work hours.
In January 2022, Mr. Cheng was diagnosed with stage four bowel cancer. He underwent surgery in February 2022 and in July 2024. During his recovery, he experienced symptoms such as fatigue and nausea. Despite this, he was “pressing” for an almost immediate return to work after his surgery, Fair Work Commission records noted.
Had history of performance issues
Mr. Cheng had been regularly performance managed since September 2022. This was for issues like failing to meet deadlines and submitting work of an “unsatisfactory standard.” In May 2024, Mr. Cheng was issued a “first and final warning” for serious misconduct. This came after he breached a direction by re-sharing a Facebook post that made disparaging comments about a Church Missionary Society stakeholder.
The warning explicitly stated that any further breaches or unacceptable behaviour could see him dismissed. But when Mr. Cheng returned to work after his July 2024 surgery, he committed further breaches. In August 2024, his manager issued two warnings against him. The first was regarding taking leave without notifying his manager. The second was around working outside of normal business hours.
Breached directions again
Despite the warnings, Mr. Cheng breached company policy again. On 20 August 2024, he emailed his manager at 4:38 am to say he had begun work for the day. Following a further breach on 21 August 2024, his manager warned that any work outside normal hours would not be paid. He also warned that it would be considered a breach of a lawful and reasonable direction.
The most significant breach occurred on 4–5 September 2024, when Mr. Cheng, feeling unwell, stopped work around midday and fell asleep. He then worked overnight, sending urgent work at 8:12 pm and 2:18 am. He failed to notify his manager of his illness and absence during working hours. Mr. Cheng was given a “final chance” on 6 September 2024, but was warned another breach could see him dismissed.
Dismissed for serious misconduct
The final incidents occurred on 25 September 2024 and 27 September 2024, when Mr. Cheng again sent work emails at around four in the morning. In the emails, he said “please treat these out of hours emails as a donation of time to CMS.” In a subsequent meeting, Mr. Cheng conceded that he was attempting to find a way to slip past the direction to work only during normal hours.
After a show cause process, Mr. Cheng was fired by Church Missionary Society on 14 October 2024. That evening, Mr. Cheng emailed all staff, stating the two reasons for his termination – working outside hours and failing to log leave – were “true.” He offered his apologies to colleagues who may have been affected by his behaviour.
Argued he was just trying to complete his work
Mr. Cheng lodged an unfair dismissal claim with the Fair Work Commission. He conceded that his failure to follow directions was misconduct. However, he argued it didn’t constitute serious misconduct that would provide a valid reason for his sacking. He submitted his termination was disproportionate given his long service, age, serious health condition and financially dependent wife.
His motivation for flouting the directives, he argued, was based on an attempt “to complete his duties,” not to be deliberately defiant. Mr. Cheng also claimed the dismissal was unjust because Church Missionary Society failed to meet its obligations to him as a disabled employee. He argued the organisation “made no attempt” to reasonably accommodate his disability by permitting flexible work hours.
Mr. Cheng highlighted a report from his oncologist, which stated the dismissal was “unwarranted and harsh.” It also suggested it would’ve been helpful to permit Mr. Cheng to take breaks inside normal hours and have flexibility to catch up outside normal work hours.
Employer said it did accommodate disability
Church Missionary Society argued Mr. Cheng’s termination was fair due to his wilful or deliberate misconduct. It rejected the allegation of failing to accommodate his disability. The organisation said that it implemented every accommodation requested by Mr. Cheng and that
any requests for further adjustments required medical advice. Church Missionary Society noted the lack of a formal request or medical clarification from Mr. Cheng to support a new flexible arrangement.
Fair Work found worker “knowingly” refused directions
At Mr. Cheng’s unfair dismissal hearing, the Fair Work Commission found that Church Missionary Society did have a valid reason for his sacking. The directions to work inside normal work hours and log leave were found to be “reasonable in the circumstances.” This is because they facilitated transparency, communication and aligned with company policy.
It was noted that Mr. Cheng didn’t object to the directions at the time they were issued.
The Commission rejected Mr. Cheng’s claim that his breaches were an honest misunderstanding. It accepted his concession that he was seeking to “slip past this regulation [the directions].” The Commission also found his claim of offering time voluntarily to be “disingenuous.” It concluded that Mr. Cheng “knowingly and repeatedly” flouted the directions and that the misconduct was “not minor.”
Rejected oncologist’s opinion
The Fair Work Commission didn’t accept that the sacking was disproportionate. This was given that Mr. Cheng “wilfully and deliberately” behaved in a manner inconsistent with the continuation of his employment contract. The Commission also found that Church Missionary Society had not unreasonably refused a request for flexible work.
The report from Mr. Cheng’s oncologist was viewed as “no more than commentary after the fact of dismissal” and did not influence the circumstances leading to termination. It was noted that Church Missionary Society had in fact provided a copy of Mr. Cheng’s job description for him to take to his oncologist, thereby inviting a discussion on required changes.
Given all these findings, the Commission ruled that Mr. Cheng’s dismissal was fair. His unfair dismissal application was therefore rejected.
Executive wins AU$2.3 million after role changed during chemo
Another story of a worker being unfairly treated during cancer recovery made headlines in May 2025. It involved UK-based Andrea Wainwright, who worked as head of installations at IT managed services company Cennox. Ms. Wainwright, who had worked for Cennox for 17 years, went on sick leave in 2018 to undergo chemotherapy for breast cancer.
During her absence, a colleague, Shelley Cawthorne, stepped into her role, with Cennox assuring Ms. Wainwright the arrangement was “temporary”. However, a UK tribunal heard that Ms. Cawthorne was counter-offered Ms. Wainwright’s role as part of a deal to prevent her from leaving. The intention was later to split the role upon Ms. Wainwright’s return.
Discovered her role given to colleague via LinkedIn post
The organisational change was formalised in a new internal chart that placed Ms. Cawthorne in the head of installations role. However, Ms. Wainwright was never informed of the change and was not included in the new structure. She only became aware of the change via a LinkedIn post by Ms. Cawthorne. This was just three months after she had gone on leave for chemo.
She immediately contacted the HR director, but was told the organisational changes were “not expected” to alter her role. She was assured that Ms. Cawthorne’s position was still temporary. However, when she returned to work, she was told her role would be split between her and Ms. Cawthorne.
Took employer to tribunal for constructive dismissal
Ms. Wainwright made an official grievance with Cennox about the changes. She argued that this was a demotion and saw her lose “several key responsibilities.” However, the grievance was not upheld, so she resigned in September 2019. She subsequently launched a claim for discriminatory constructive dismissal (i.e. forced resignation) via a UK employment tribunal.
The tribunal found that she had been misled by Cennox regarding the changes to her role. It was accepted that she felt “traumatised and broken” on discovering someone else had taken her job. However, the tribunal found there were no grounds for constructive dismissal
Appealed decision
Ms. Wainwright’s claim was escalated to the UK’s Employment Appeal Tribunal. It ruled the initial tribunal had misapplied the law and failed to give adequate reasons for its decision. The Employment Appeal Tribunal determined that her constructive dismissal was discriminatory because the discriminatory treatment was a central reason for her resignation.
The judgement noted that the employer’s misleading conduct was a breach of the implied terms of mutual trust and confidence. The Tribunal awarded Ms. Wainwright £1.2 million (AU$2,311,960.33) in compensation. This covered her loss of earnings, anticipated future income, pension contributions and damages for injury to feelings.
Worker undergoing chemo ‘harassed’ for having cancer
Another similar tribunal case involving a cancer-stricken worker made the media rounds in September 2025. It involved UK-based Mr. L Ralfs, who lodged a claim for disability discrimination with a UK employment tribunal. Mr. Ralfs had started working as the finance and IT director at The Arbib Education Trust in February 2022. Just two days after starting his new role, Mr. Ralfs was diagnosed with a relapse of Hodgkin Lymphoma. He had previously disclosed this condition during the recruitment process.
The tribunal heard that during his subsequent sick leave for chemotherapy, Mr. Ralfs was subjected to multiple instances of unfavourable treatment. His manager began requesting daily updates on whether he was working and weekly emails confirming his hours. Mr. Ralfs declined providing these emails, citing discomfort.
Denied pay rise due to being on leave for chemo
In March 2022, the HR director wrote to Mr. Ralfs warning that his future sick pay entitlement would be reduced if he fell ill again within the following year. This was despite the fact Mr. Ralf’s manager had already decided to offer four months of enhanced sick pay.
Upon returning to work on a phased basis in November 2022, Mr. Ralfs was informed he would not receive an annual inflationary pay rise. The reason given was that he was “new in role”. The tribunal found this rationale was inconsistent with the trust’s own policy, which defined “new in role” as starting after 1 March. Mr. Ralfs had started on 1 February 2022.
Called out for not acknowledging the impact of his cancer on others
Mr. Ralfs challenged the pay decision. He alleged to his employer that his illness was being used to justify withholding an inflationary pay increase. The tribunal found that the trust’s decision not to award the pay rise amounted to “unjustifiable unfavourable” treatment arising from his disability.
Further exacerbating the situation, during a meeting on 12 December 2022, Mr. Ralfs’ manager told him that he had failed to acknowledge the impact his illness had on his colleagues and the organisation. Also, on the manager himself. The tribunal concluded that the combined effect of these remarks created a “hostile or offensive” environment, constituting harassment.
Found to have been constructively dismissed
Mr. Ralfs submitted a formal grievance with the trust in January 2023, but this was not fully upheld, and his internal appeal was mishandled. He ultimately tendered his resignation on 24 February 2023, citing discrimination in the pay award process, misleading communications and failure to follow internal policies.
In September 2025, the tribunal ruled that Mr. Ralfs had experienced disability-related unfavourable treatment, harassment and victimisation. It therefore concluded that he had been constructively dismissed. A remedy hearing for Mr. Ralfs’ case will follow later this year.
Read more: My Employer Has Dismissed Me Unfairly – Can I Lodge An Unfair Dismissal Claim?
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