Reinstatement + $33K for worker sacked over curious personal leave claim on PH shift

A Western Australian stevedore has successfully challenged his dismissal for “dishonesty” over claiming personal leave for a shift which was due to commence at 4.00pm on Australia Day, with the Fair Work Commission rejecting the employer’s assessment that he had engaged in “misconduct” by attending an event at a local restaurant with his partner while he maintained he was unfit for work.

The stevedore was notified of a bereavement in his family (his stepfather’s sister had passed away) early on 26 January 2025, and after spending time with his stepfather during the morning, determined he would not be fit to attend work later that day. At around midday, the stevedore applied for personal leave via the employer’s automated system and did not attend for his rostered shift at 4.00pm. On 27 January, the stevedore supplied his employer a statutory declaration saying that he was unable to attend work on the previous day due to “family matters”. The stevedore determined he owed his employer this clarification after an awkward encounter with his Operations Manager at the restaurant the night before, resulting in the Operations Manager refusing to shake the stevedore’s hand during the interaction. The employee was notified on 28 January that he was being stood down on pay while the allegation that he “may have engaged in in unacceptable workplace conduct on 26 January 2025” was investigated. A subsequent letter of 29 January alleged “serious misconduct” in the form of “misuse of personal leave on 26 January 2025”.

Despite responding within the timeframe provided and maintaining his position that he had taken personal leave because he was in no frame of mind to attend work following the death of his aunt, the stevedore was dismissed on 7 March. In coming to this outcome, the employer refused to accept the employee’s statutory declaration and funeral home death notice as sufficient evidence to substantiate his claim for personal leave on 26 January 2025 as “credible”. Instead, the employer concluded that “the evidence showed that the [employee] was aware of the plan to go to the restaurant with his partner before he called in sick” and because he was “not unfit for work on 26 January 2025” his “dishonesty” amounted to “misconduct”.

In overturning the termination, Deputy President Roberts placed significance on the evidence of the employee’s partner, assessing she was “a better witness” than the stevedore (both the employee and his partner were “cross-examined at length” during proceedings), and indicating “her answers were clear, responsive and more detailed” than the employee’s. Despite the employee and his partner failing to comply with Orders to provide records of all messages (including text and Facebook posts/messages, etc) relevant to the events of 26 January 2025, Deputy President Roberts accepted the evidence of the stevedore’s partner that, “the [employee] was in a depressed mood when he returned home on the afternoon of 26 January and that it was only after her repeated requests and by appealing to her concern about the [employee’s] well-being that the [employee] ultimately agreed to attend the evening event”. The Deputy President further accepted that the stevedore legitimately assessed he was unfit to work his afternoon shift on 26 January, observing:

“I am satisfied given the evidence of the [employee] and [his partner] that after sitting with his grieving stepfather for a number of hours the [employee] made a legitimate assessment that he was incapable of working as required and would present a safety risk to himself and others if he was to attend work later that day.”  

Concluding that the evidence failed to establish that the stevedore had engaged in misconduct as alleged by the employer, Deputy President Roberts determined there was no valid reason for termination, which rendered the dismissal unfair. In awarding reinstatement, continuity of service and lost pay for the period the stevedore was out of work, Deputy President Roberts also had regard for the fact the stevedore had “a satisfactory work history over reasonable period of time” (approximately four years) prior to his termination and there had been no previous similar concerns over his use of personal leave.

The employer was ordered to reinstate the employee to his previous position within 14 days and “to pay [the employee] the sum of $33,798.00 (gross) on account of remuneration lost or likely to have been lost by [the employee] as a result of the termination…on 7 March 2025”.

Jenkins v Qube Ports Pty Ltd (Port Kembla) [2025] FWC 2447 (22 August 2025)

Jenkins v Qube Ports Pty Ltd (Port Kembla) [2025] FWC 2447 (3 September 2025)