Fair Work Commission overturns Qube dismissal of port worker David Jenkins

A port worker who was sacked for skipping work on Australia Day before having dinner with his partner and friends and watching a fireworks display has won his job back.

David Jenkins took his employer Qube Ports to the Fair Work Commission over the sacking, claiming he had taken the day off to mourn the passing of his aunt.

Mr Jenkins, a stevedore at Qube’s Port Kembla site, was rostered to work from 4pm on Australia Day in January, according to a ruling from the Fair Work Commission.

But he was told that morning his aunt had died, and at midday Mr Jenkins applied for personal leave through Qube’s automated system.

That night, Mr Jenkins attended a dinner at the up-market Lagoon Seafood Restaurant overlooking the ocean with his partner.

Mr Jenkins saw his boss at the restaurant.

The worker approached his boss and offered to shake hands, but the boss declined and left the restaurant.

Mr Jenkins continued with drinks and dinner at the restaurant, stayed for an Australia Day fireworks celebration and then went home.

The next day, Mr Jenkins provided Qube with a statutory declaration saying he was unable to attend work the previous day due to family matters.

On January 28, Qube sent Mr Jenkins a letter stating he may have engaged in unacceptable workplace conduct.

Qube then suspended Mr Jenkins with pay, pending an investigation, and ultimately terminated him from his job on March 7.

The company argued Mr Jenkins had “misused his sick leave entitlements and thereby exhibited a lack of integrity and a disrespect” for his employer.

“The respondent (Qube) said that the evidence showed that the applicant (Jenkins) drove his vehicle to and from his stepfather’s house of January 26 without difficulty, and that driving of vehicles from the vessel to the dock was precisely the work that the applicant was rostered to perform,” the FWC’s background statement reads.

On March 27, Mr Jenkins went to the FWC alleging unfair dismissal.

This week, FWC Deputy President Thomas Roberts ruled in favour of Mr Jenkins, even as he concluded the stevedore was “not a particularly impressive witness”.

“When tested, his recollection of the details of events and conversations was poor,” Mr Roberts said in his decision.

“He appeared to lack focus in the witness box and gave answers to straightforward questions with a tendency to simply estimate an answer or give a vague answer, rather than give careful consideration to each question that was put to him.”

But Mr Roberts ruled Mr Jenkins had been affected by his aunt’s passing, and Qube’s contention that he used the bereavement as an excuse to phone in sick so he could attend the dinner later in the day was not “borne out by the evidence”.

“I also do not accept that the applicant was not affected by the family bereavement such that this had no impact on his capacity to work later that day,” Mr Roberts said.

“ (Qube) pointed out that the applicant was able to make the journey by car to and from his stepfather’s residence, but then assessed himself as incapable of performing driving duties at work.

“However, the distance travelled by the applicant (on) that day involved driving only a matter of minutes each way.

“That is materially different from driving vehicles over the course of a full shift at work.”

Mr Roberts reinstated Mr Jenkins’ position and ordered Qube to pay him lost wages.