Qube has been ordered to reinstate a stevedore dismissed for sharing photos of female colleagues in bikinis, and swearing, victimising, and intimidating others in the workplace. Procedural failings, amongst other factors, led to a finding that the dismissal was unfair, despite Qube’s argument that reinstatement would send the wrong message and deter others from making complaints.

Background
Mr Robert Smith, a stevedore at Qube’s Port of Melbourne facility was 62 years old and had 15 years of service when he was terminated for misconduct in January 2025.

He had an unblemished employment record until the final year of his employment when he received a written warning in February 2024 for breaching the drug and alcohol policy, and a first and final warning related to an incident in March 2024 when he showed photos of two female colleagues in bikinis to male co-workers (the photo incident).

Two incidents led to Mr Smith being terminated:

• The toilet car incident in October 2024, where Qube substantiated an allegation that Mr Smith called another employee Mr Jeremy Churchward a “condescending c*nt” and “useless piece of shit” when he refused Mr Smith’s request to move a toilet car (as he was already driving a vehicle).
• The Subway sandwich incident in November 2024, where Qube substantiated that Mr Smith asked another employee “What’s for lunch?” to which they replied “Subway. Why? What did you do to it?” and Mr Smith said “Well I spat in it and put my cock in it”.

The photo incident
The photo incident, which led to Mr Smith receiving a first and final warning, was considered in detail in the unfair dismissal case. The conduct occurred in March 2024, when Mr Smith (who was the foreman for that shift) was working in the hold of a ship with 3 other male stevedores, including Mr Churchward.  During the shift, Mr Smith began boasting about how two female co-workers talked to him regularly and sent him photos of themselves. Mr Churchward and the other stevedores didn’t believe Mr Smith, saying words to the effect of “that’s not true…. you’re full of it”. Mr Smith responded that he had photos on his phone and showed them a photo of the girls in their bikini’s, in a hot tub together.

When the circumstances surrounding this incident were analysed in the unfair dismissal case, it was found that Mr Smith also zoomed in on their bodies in a suggestive manner, urging the male co-workers to “take a look at this”. As a result of this conduct, he received a first and final warning and controls were put in place to ensure he didn’t work with the female colleagues.

Toilet car incident
On night shift on 5 October 2024, Mr Smith and Mr Churchward were involved in an incident that involved them swearing at each other about a request to move a toilet car.

Mr Churchward confirmed the heated nature of the exchange between him and Mr Smith, noting a pre-existing tension related to industrial action - specifically, a "go slow" limiting driving speed to 15 km/h, which Mr Churchward allegedly violated. 

Mr Churchward explained that on 5 October 2024, he was arranged to be working the breakout role on shift where Mr Smith was the team leader. At the start of the shift, he says the foreman warned him that Mr Smith was out to get him that night. Mr Churchward, in his evidence said:

“…Robbie suddenly pulled up in front of us in his car and cut us off… Robbie then started going off at me, saying among other things “you condescending c*nt. You useless piece of shit”.

"Robbie was swearing his head off at me. I did swear back at him…"

"Then he started up again and yelled at me that I needed to go and get the toilet car… Someone needed to bring up the toilet car, but I was already driving the breakout taxi. There were three cabs of 18 other  stevedores who could drive the toilet car back. There was no reason to get me out of the breakout taxi  and drive back the toilet car…I knew that Robbie was just trying to push me around. I did swear back at him and said something like “get your own fucking toilet car”.

At some point then or around that time, Robbie said that he was going to get me “written up” for my  behaviour that night. I told him he couldn’t write me up for defending myself.” 

Mr Smith made a report of the incident to the shift manager and he asked the manager to speak to Mr Churchward for swearing at him and refusing to do what he was asked by his team leader. Mr Churchward did not make any report or complaint. 

Mr Smith denied saying the words “condescending c*nt” and “useless piece of shit” to Mr Churchward. He provided a very different picture of what happened that night, saying he did not specifically ask Mr Churchward to drive the toilet car but only asked him to stop so one of the other breakout drivers could have got out and drive it to where it needed to be parked; and that Mr Churchward just told him to “get fucked” before driving off.

Mr Zidarich was a witness in the cab with Mr Churchward during this incident. He did not provide a witness statement, despite being asked to by Qube. However, the notes from the HR Manager’s interview with him were submitted into evidence. These notes show that Mr Zidarich could not recall the exact words that Mr Smith said to Mr Churchward but said that he “bagged him out” and “it wasn’t nice”. Mr
Zidarich confirmed Mr Churchward’s account of the events in that Mr Smith was asking Mr Churchward to drive the toilet car, even though he was driving another vehicle. He made the following comments in his interview with the HR Manager:

“Jeremy was obviously driving a vehicle already so why would you ask him to. He likes to ride Jeremy  after what happened earlier in the year.” (referring to Mr Churchward’s involvement in the photo incident)

When asked if Mr Churchward told Mr Smith to fuck off, Mr Zidarich replied: “Yes he did. When you’re  being targeted like that, and Robbie gets on the nasty side. He will ask you to do something when you he knows you can’t do it…”

“Me and him have had it out a bit but he stopped when I stood up to him. He’s a good worker but when he gets a bit of power, and he has group around him he likes to be outspoken. Everyone else just wants to  come to work and work in harmony, and he just disrupts it. I know Jay has his hands full, but it should  have been squashed back when everything happened with the girls and the photo. It’s a shame. Some people say he shouldn’t get the sack and others say he should have been gone a while ago.”

The Commissioner noted that the allegations were explicit – that Mr Smith used the language Mr Churchward had alleged. He did not accept that the evidence established Mr Smith engaged in the alleged conduct. He accepted that the men both swore at each other and that given their history there was likely a degree of increased sensitivity to their communications. He said:

 “It is well accepted that swearing on the waterfront, however, is not controversial. Nor is it usually controversial for stevedores to engage in robust language and use explicit language, including directing them at each other.”

As a result, the Commissioner found that the toilet car incident did not form a valid reason for dismissal.

Observations
On the balance of probabilities, most HR professionals could accept Qube’s finding that Mr Smith engaged in the alleged conduct. Especially in the context of the foreman warning Mr Churchward at the start of the shift that Mr Smith was out to get him, and the witness supporting Mr Churchward’s version of events (contrary to Mr Smith’s), despite him not being able to recall the exact words Mr Smith said. Qube relied on the finding that that Mr Smith’s swearing at Mr Churchward was an act of targeted victimisation. The Commissioner found that while engaging in this conduct discredited both Mr Smith and Mr Churchward, the evidence did not establish there was an element of victimisation or maliciousness in Mr Smith’s conduct.

Subway sandwich incident
The second incident that led to Mr Smith’s dismissal was in relation to the Subway sandwich incident on 27 November 2024, involving Mr Dylan Aquilina. 

Mr Aquilina, the owner of the sandwich, was not prepared to make a formal complaint about the incident for fear of backlash, despite being encouraged to do so by the shift manager, Ms Heveren. 

The evidence submitted was from Ms Heveren’s notes and email after the incident. She said she saw Mr Aquilina standing with a Subway sandwich in his hands. She noticed he was visibly upset and shaking. Mr Aquilina told her he needed to go home. She asked why and he said words to the effect that Rob (Mr  Smith) had been at it again. He said another employee Jason asked Rob what was for lunch. Rob said “Subway” because he had seen Mr Aquilina put his Subway in the fridge. Mr Aquilina said that he had laughed and Rob had then said “Well, I spat in it and put my cock in it.”

Ms Heveren asked if Mr Aquilina wanted to make a formal complaint and he said that he did. They stepped into Ms Heveren’s office where she recorded Mr Aquilina’s account of what had happened in an email (later submitted into evidence). Mr Aquilina was off sick the following day and when he returned, he made it clear that he didn’t want to follow through with the complaint about Mr Smith.

Mr Smith denied using the alleged language with Mr Aquilina. He accepted that he would regularly engage in banter, joked around with co-workers and used swear words. That perhaps others could misinterpret his banter to be something other than it was, but that his intention was never meant to hurt or harm anyone.

Despite Ms Heveren’s evidence that Mr Aquilina was visibly upset and shaking after the incident, left work early, called in sick the next day and was not willing to follow through with the complaint for fear of  backlash, the Commission found that her evidence was not reliable. Under cross-examination, Ms Heveren acknowledged she was friends with the mother of Ms Cogger, one of the females in the  bikini photo that Mr Smith showed to co-workers in March 2024.

Sometime after the photo incident, an Operations Superintendent told Ms Heveren via email that he had to roster Mr Smith and Ms Cogger on the same shift (even though they were not meant to be working together). Ms Heveren replied to the email, also informing senior managers, of her views and outlining concerns for Ms Cogger. This email was submitted into evidence and shows Ms Heveren calling Mr Smith a “narcissistic, gaslighting bully”. 

In cross-examination, Ms Heveren acknowledged that she wasn’t aware of any other incident where Mr Smith had acted inappropriately to Ms Cogger, other than the photo incident in March 2024. She also admitted she hadn’t witnessed Mr Smith bully anyone else. She explained her views were based on other employees who had come to her to make complaints about Mr Smith but that people would not make formal complaints. Ms Heveren referred to a fellow shift manager, Mr Carbis, who had previously told her he felt “sick from the fear of whether Mr Smith was working or not”. Ms Heveren reiterated her view that Mr Smith was a bully on this basis and that he should not be reinstated.

The Commissioner found that there was no direct evidence to support Ms Heveren’s views. He found she clearly had a pre-determined view about Mr Smith - she firmly believed he should have been sacked for his actions of showing the photos of his female co-workers, and that this has coloured all her subsequent interactions with, and about Mr Smith thereafter.

The Commissioner noted that in circumstances where Ms Heveren’s evidence was the only direct evidence before him about the Subway sandwich incident, he was not satisfied it presented an accurate picture of what occurred. The Commissioner was therefore not satisfied, on balance, that Mr Smith engaged in the conduct alleged, and therefore this was not a valid reason for his dismissal.

Observations
On the balance of probability, many could accept that Mr Smith engaged in this conduct.
Particularly given Ms Heveren’s evidence that Mr Aquilina was visibly upset and shaking after
the incident, left work early, called in sick the next day and was not willing to follow through
with the complaint for fear of backlash. Unfortunately, her perceived bias towards Mr Smith
impacted the credibility of her evidence, leading the Commissioner to find in favour of Mr
Smith’s evidence – that he didn’t use the alleged language and it was banter with co-workers.

Qube’s procedural steps leading to dismissal
On 13 December 2024, Mr Smith received a letter, advising he was stood down with pay following reports he may have engaged in unacceptable workplace behaviour. 

On 17 December 2024, he was provided with an allegations letter instructing him to attend a show cause meeting the following day to respond to the allegations. The allegations included the toilet car incident and the Subway sandwich incident.

During the show cause meeting on 18 December 2024, the HR Manager mentioned this was his third disciplinary matter in 12 months and that this was his opportunity to advise why his employment should continue if the allegations were substantiated. The HR Manager also asked Mr Smith to respond to the allegation he was a known bully in the workplace and referred to the toilet car and Subway sandwich incidents as two specific incidents of bullying. Mr Smith denied he was a bully.

On 15 January 2025, Mr Smith was advised that the allegations were substantiated and that his employment was no longer tenable. He was terminated with immediate effect and paid 4 weeks in lieu of notice. 

Whether there was a valid reason for dismissal s387(a)
Qube argued that there were multiple valid reasons for Mr Smith’s dismissal, including the photo incident in March 2024, the toilet car incident in October 2024, the Subway sandwich incident in November 2024, dishonestly in the investigation, and a hatch incident that was not formally investigated. 

The Commissioner found that the only valid reason for dismissal was in relation to the photo incident in March 2024, which Mr Smith had already received a first and final warning for. 

Whether the person was notified of that valid reason s.387(b) and had an opportunity to respond s387(c)
Notification of a valid reason for termination must be given to an employee before the decision is made to terminate their employment, in explicit, plain and clear terms. The only valid reason for dismissal was in relation to the photo incident in March 2024.

The Commissioner found that in the three separate letters Qube sent to Mr Smith (stand down letter, allegations letter and termination letter), there was no mention of Mr Smith being on a final warning, or his conduct on 27 March 2024 in relation to the photo incident. Only the toilet car and subway sandwich incident were referenced. Therefore, Mr Smith was not advised of the valid reason for his dismissal and did not have an opportunity to respond to that reason. 

Any other matters the FWC considers relevant s.387(h)
The Commissioner considered submissions in relation to several other relevant matters, including disproportionate response, differential treatment, denial of procedural fairness, length of service and age, impact of hostile enterprise agreement negotiations, employment history and previous warnings, a fair go all round, and the implications of Mr Smith’s conduct on 27 March 2024 and the other allegations of bullying against him.

Disproportionate response
The Commissioner was satisfied that Mr Smith’s conduct on 27 March 2024 regarding the photo incident was entirely inappropriate, and on its own provided a valid reason for dismissal. Had Qube taken this action at the time, he said he would find that termination was not a disproportionate response. However, based on the evidence before him, he found that dismissal was a disproportionate response to the conduct, specifically the toilet car and Subway sandwich incidents. 

Differential treatment
The Commissioner accepted that swearing was commonplace on the waterfront, and that Mr Smith and Mr Churchward both swore at each other during the toilet car incident, but only Mr Smith was held to account for the conduct. The belief by Ms Heveren, shift manager, that Mr Smith was a bully, and that he should have been sacked following the photo incident, also led to a finding that she treated Mr Smith differently to other workers. This led to the dismissal being harsh and unjust. 

The implications of Mr Smith’s conduct
In proceedings, Mr Smith accepted the impact of his conduct in the photo incident on both female co-workers was significant. Qube argued that the Commission must consider the impact on workers who may be discouraged from making complaints about Mr Smith or others in the future.

The Commissioner acknowledged he did not hear any evidence from the females in the photo incident, so could not speculate on their reaction. The same applied for Mr Aquilina with the Subway sandwich incident and Mr Carbis who was the other shift manager who allegedly said he felt sick from fear about whether Mr Smith was working or not. Whilst Mr Churchward provided consistent evidence that he thought Mr Smith should have been sacked, he had no issues working with him. The Commissioner did not find this as a factor that weighed against a finding the dismissal was harsh and unjust.

FWC decision
The Commissioner found that dismissal of Mr Smith was harsh and unjust because the seriousness of his conduct on 27 March 2024 (the photo incident) when considered with his disciplinary history is outweighed by the following matters: 

• Mr Smith’s age and length of service
• Not being notified of the valid reason for his dismissal (photo incident)
• Not being provided with an opportunity to respond to the reasons for his dismissal prior to being dismissed
• Being treated differently to other workers in the circumstances of complaints made and conduct involving swearing

Remedy
Mr Smith sought reinstatement, which Qube strongly opposed, with one of the main reasons being that reinstating Mr Smith would send the wrong message to everyone involved and create major issues for Mr Churchward as the only person who had bravely stood up to Mr Smith. They also argued a fundamental breakdown of trust and confidence in the employment relationship.

The Commissioner, given the evidence before him, was satisfied that a level of trust and confidence could be restored to make the relationship viable and productive. Mr Smith was reinstated with compensation representing 50% of what he would have received had his employment continued.

Lessons for HR and employers

• Show cause process must include any reason the employer may give consideration to when deciding whether termination is appropriate. This ensures the employee has an opportunity to respond to any reason related to their capacity or conduct - to satisfy s387(c).
• The termination letter stated that Mr Smith’s employment was no longer tenable but lacked specificity regarding the reasons for dismissal. Ensure all reasons for dismissal (that were covered in the show cause process) are included in the termination letter – to satisfy s387(a) & (b).
• Consistency in how disciplinary matters are handled is important to ensure differential treatment is not a factor that could render a dismissal harsh or unjust.
• Quality of investigations is key, particularly whether or not there is sufficient evidence to substantiate an allegation. 
• Whilst it did not present as an issue in the FWC decision, it seems Mr Smith’s right of response to the allegations occurred as part of a show cause meeting. Typically, it is best practice for these processes to occur separately. Employees should have an opportunity to respond to allegations before findings are made. If substantiated and serious, the show cause process can provide a final opportunity for the employee to respond prior to any decision being made about their employment.
  
• Whilst not taken lightly, another option open to employers is to summons witnesses to appear in FWC proceedings. If witness accounts are likely to have a strong positive impact on the case, there is benefit in weighing this option (including impact on the witness and potential loss of trust) against a negative outcome such as reinstating a dismissed employee. 

Conclusion
This has been a really interesting, complex and somewhat difficult case to review. The evidence presents a very real picture of conduct likely occurring in the workplace and why Qube substantiated the allegations against Mr Smith. As HR professionals, we can also appreciate how difficult it would be managing the reinstatement of a dismissed employee and the likely impact on ER and a positive reporting culture. This case review is packed full of learnings for you to apply to avoid facing a similar challenge!