Qube Ports forced to reinstate Melbourne wharf worker who allegedly put genitals in sandwich
A Melbourne port terminal operator has failed to appeal a Fair Work Commission decision forcing it to reinstate a porter who allegedly showed bikini photos of colleagues at work, used vulgar language and put his genitals in a colleague’s sandwich.
On Tuesday, the commission approved the decision forcing Qube Ports to reinstate the stevedore after concluding that some, but not all, of the allegations against him were proven.
The man, who started working at Qube in 2009, was made redundant in January last year and filed an unfair dismissal claim the following month with the support of the Australian Maritime Union.
His employment continued “without significant incident” until 2024, when he was given a formal written warning for violating the company’s drug and alcohol policy after testing positive for THC.
In March 2024, he showed photos of two female co-workers wearing bikinis to other employees during working hours and was pulled into a meeting to discuss his behaviour. He received his first and final warning for his behavior in April.
One of the employees seen in the photographs expressed concern that he would be assigned to work the same shift as the man later that year and said he felt physically ill.
“He is a known bully in our workplace, and having been harassed by him, I know how much effort it takes to make someone uncomfortable and unsafe,” she said in an email.
In December he was told the man’s conduct was being investigated confidentially.
Qube later sent a letter to the man, suspending him from work with pay while the investigation continued.
In October 2024, the man was allegedly involved in an incident in which he and another man swore at each other over a request to move a toilet trolley on the field. The loadmaster, the team leader on the shift, allegedly called his colleague a “condescending jerk” and a “useless piece of shit”.
In November of that year, he allegedly told another employee that he spit on Subway sandwiches and put his genitals inside.
The Subway incident was also found to be insufficiently proven; The commissioner said the case was based in part on evidence from someone who had a preconceived notion that the man should be terminated for his behavior regarding the bikini photo.
The stevedore was directed to attend a meeting regarding the Subway and toilet car incidents, which Qube said was against workplace policies. The man denied the allegations, but in January 2025 he received a letter informing him that the allegations had been substantiated and that he had been terminated.
The fair labor arbitrator found in 2025 that although the man had engaged in inappropriate behavior when showing the bikini photo, including “zooming into the image in a suggestive and inappropriate manner”, the photo was likely to have been shown during an inappropriate conversation between conveyancers about the romantic prospects of one of his colleagues. “[His] the conduct did not involve anything that was malicious, predatory, or deliberately harmful to the point of bullying sexual harassment,” the commissioner said, and was not cited by Qube as a reason for his termination.
The commission also said the men were likely swearing at each other in the toilet carriage incident, but there was no evidence that the sacked stevedore had used the same phrases as claimed, and it was “well accepted” that swearing on the beach was not controversial.
University of Sydney professor emerita Joellen Riley said if the commission found that behavior such as swearing was generally tolerated in a workplace, it might consider it unfair to dismiss a worker for that reason.
The man’s age and length of service were factors that outweighed his misconduct in the bikini photos incident.
Riley said the commission often takes a person’s age into account when evaluating whether a sentence is harsh.
“If someone has a good long-term record, the misconduct is not serious, and if the person is 62, firing them could be viewed as harsher than firing a 19-year-old who has a better chance of re-employment elsewhere,” he said.
The commission also found that the man was not notified of the reason for his dismissal, was not given an opportunity to respond and was treated differently than other employees.
In September last year Qube filed a notice of appeal and was allowed to delay the dockworker’s reinstatement until a decision was made on the appeal.
Qube’s notice of appeal contained 12 grounds, including claims that cursing and cursing at others was not commonplace, that the commission had failed to account for power imbalances between employees involved in the alleged incidents, and that it had disregarded some evidence.
Alan Colman, deputy chairman of the Fair Work Commission, concluded that it was not in the public interest to allow Qube to appeal, saying no error had been shown in the decision of the commissioner who made the original decision.
“[The man]“…with 15 years of service…the evidence established that he was involved in some, but not all, of the misconduct alleged against him,” he said, and the dismissal was found to be harsh and unfair.
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Millie Muroi is the economics writer for The Sydney Morning Herald and The Age. He was previously an economics correspondent for the Canberra Press Gallery and a banking writer in Sydney.Connect with: X or email.
