Reinstatement upheld for employee who called coworker ‘a condescending c-nt’
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An appeal against the unfair dismissal of a Qube Ports employee has been refused by the Fair Work Commission despite multiple allegations of poor and unprofessional conduct.
Fair Work commissioner Scott Connolly’s initial order for the reinstatement of a port terminal operator alleged to have shared images of a coworker in a bikini has been upheld, and permission for appeal denied, after it was again determined that the company did not follow its own policy correctly.
After working as a stevedore at the Port of Melbourne since 2009, the employee was dismissed on 15 January 2025 after several allegations were made against him, including that he showed coworkers images from Facebook during work hours on 27 March 2024, in which two female colleagues were in bikinis.
On 19 April 2024, the employee was given a first and final warning, which said: “You need to understand that if your conduct does not improve, or if you otherwise behave in a manner that is inconsistent with Qube policies, values and expectations, further disciplinary action will result and will likely involve the termination of your employment with Qube.”
Following this event, one of the affected coworkers wrote an email to Qube Ports general manager Jay Jamieson and HR manager Vicki Tsirepas that said: “He is a known bully in our work place and having been harassed by him I know the lengths he goes to, to make someone uncomfortable and unsafe.”
Qube Ports also alleged the worker victimised the employee who reported the Facebook incident, but no disciplinary action was recorded at the time.
In what was referred to as the “toilet car incident”, the two workers allegedly had an altercation around the position of a toilet car onsite, where it is alleged the yet-to-be-terminated employee called his alleged victim “a condescending c-nt” and “a useless piece of sh-t”.
It is also alleged that, in response to a question about the day’s lunch, where they were asked “Why? What did you do to it?”, the worker responded: “Well I spat in it and put my c-ck in it.”
The employee received a letter standing him down from work with pay on 13 December 2024, and further correspondence on 17 December directing him to attend a meeting to discuss the allegations.
After apparent substantiation of the allegations, it was determined that the worker’s employment with Qube Ports was no longer tenable, and he was terminated on the spot with four weeks’ pay in lieu of notice.
In determining the matter after the worker applied for an unfair dismissal on 5 February 2025, Connolly was not satisfied the evidence provided a valid reason for dismissal, but that the behaviour did breach the Workplace Behaviour Policy, Code of Conduct and Ethics, Employee Handbook, and Qube Port’s values and therefore constituted a valid reason for dismissal.
However, the commissioner found a lack of procedural fairness as the allegations and termination letter referred only to the sandwich and toilet car incidents, which were rejected as valid reasons for dismissal. As the Facebook incident was not mentioned, the employee was therefore not correctly notified of the valid reason for dismissal, and further did not have the chance to respond to this allegation.
In this way, it was determined that the dismissal was harsh, unjust or unreasonable.
In consideration of Qube Port’s appeal on 22 September 2025, which claimed that the commissioner “failed to identify and make findings in relation to [employee’s] conduct in each alleged incident, and what it involved” and “failed to take into account or give any weight to indirect evidence”, FWC vice president Mark Gibian, deputy president Alan Colman, and commissioner Oanh Thi Tran found the commissioner made adequate findings “in an entirely conventional manner”.
It was clarified: “We accept that it is necessary for the commission to determine the nature of the conduct engaged in by a dismissed employee … the commission is not required, however, to conduct a roving enquiry into the conduct of the employee.”
“We do not consider that it is in the public interest to grant permission to appeal … no error has been demonstrated in the decision of the commissioner which would justify permission to appeal being granted in the public interest.”
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
When a company terminates an employee's job for improper or illegitimate reasons, it is known as an unfair dismissal.
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