Fair Work Commission|2025-08-22

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

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - personal leave - whether valid reason for termination - whether dismissal harsh, unjust or unreasonable - whether reinstatement an appropriate remedy

[1] On 27 March 2025, Mr. David Jenkins (applicant) applied to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy relating to his alleged unfair dismissal from his employment with his former employer, Qube Ports Pty Ltd (Qube, or respondent). The applicant sought reinstatement to his former position, orders to maintain continuity of employment and continuous service[1] and orders for remuneration lost[2] because of the dismissal. In the alternative, the applicant sought orders for compensation pursuant to s.392 of the Act.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides, inter alia, that the Commission may order a remedy for unfair dismissal if:

(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and

[3] It was not in issue that at the time of being dismissed the applicant was protected from unfair dismissal within the meaning of s.390(a) and I am satisfied that the applicant was so protected.

[4] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[5] The applicant was dismissed on 7 March 2025 and lodged his application for relief within the requisite time period.[3] The matters referred to at points (a), (c) and (d) above were not in issue. No jurisdictional issues arise with the application. That being the case, the question of whether the applicant has been unfairly dismissed will depend on whether the Commission is satisfied that the dismissal was harsh, unjust or unreasonable within the meaning of s.385. Before dealing with that question, I set out below some of the factual background relevant to the proceedings.

[6] The applicant was employed by the respondent as a stevedore. He commenced that work in April 2021 and worked at the respondent's site at Port Kembla. At all material times the applicant and respondent were bound by the terms of the Qube Ports Pty Ltd Port of Port Kembla Enterprise Agreement 2021 (Agreement).

[7] The applicant was rostered to work at the respondent's premises on Australia Day, 26 January 2025, commencing at 4pm.

[8] The applicant was notified of a family bereavement early on the morning of 26 January 2025. The applicant said his stepfather had contacted him to say that his stepfather's sister had passed away. Shortly thereafter on that day, the applicant attended his stepfather's home to provide support. The applicant said that as a result of the bereavement, he felt he was unfit to perform work later that day. At around midday, the applicant applied for personal leave through Qube's automated system. The applicant did not attend for his shift on 26 January 2025.

[9] In the afternoon of 26 January, the applicant returned home. He had a conversation with his partner Ms. Boon. That evening he attended a dinner with his partner and friends at a local restaurant. The applicant was seen at the restaurant by the respondent's Operations Manager, Mr. Ryan.

[10] On 27 January 2025 the applicant provided the respondent with a statutory declaration saying that he was unable to attend work on the previous day due to family matters. On 28 January 2025 the applicant received a letter from the respondent saying that the respondent had received reports that the applicant may have engaged in in unacceptable workplace conduct on 26 January 2025. The letter said that the applicant was immediately suspended with pay while an investigation was undertaken. The letter provided details of the proposed investigation process.

[11] On 29 January 2025 the applicant received a further letter alleging serious misconduct, a misuse of personal leave on 26 January 2025 and a breach of the respondent's Code of Conduct and Ethics. The correspondence asked that the applicant provide a written response to the respondent's preliminary view that his employment should be terminated by 31 January 2025.

[12] The applicant responded in writing on 30 January 2025. He said that he had taken personal leave because he was in no frame of mind to attend work following the death of his aunt. He said he had a statutory declaration attesting to the fact that he had been affected by a personal family matter and could provide further information, including a death certificate, if required. On the same day the respondent requested that the applicant provide a copy of the statutory declaration and the death certificate. The following day the applicant provided the statutory declaration and said he would supply the death certificate if and when he could obtain it. On or about 4 February 2025 the applicant provided the respondent with a copy of the funeral home death notice. He was told by the respondent on 13 February 2025 that a public notice was not sufficient evidence.

[13] The applicant attended a meeting with Mr. Ryan on 7 March 2025 where he was given a written notice of termination. The termination took immediate effect.

[14] The applicant maintained that he had taken personal leave in accordance with the terms of the Agreement and that there was no valid reason for the termination of his employment related to his conduct. The applicant said that the process adopted by Qube was procedurally unfair and involved no more than the respondent 'going through the motions' before terminating his employment.

[15] The respondent submitted that the applicant had not provided a credible version of events and that the evidence showed that the applicant was aware of the plan to go to the restaurant with his partner before he called in sick. They said that the applicant was not unfit for work on 26 January 2025 and that his dishonesty was misconduct which the respondent said provided them with a sufficient reason to terminate the applicant's employment.

Was the dismissal harsh, unjust or unreasonable?

[16] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[17] I am required to consider each of these matters, to the extent they are relevant to the circumstances before me.[4] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

Evidence and submissions - events of 26 January 2025

[18] The applicant's evidence was that he received a call from his stepfather, Mr. McNamara, at approximately 7am on the morning of 26 January 205 to say that his stepfather's sister had died three days earlier. He said his stepfather was in his mid-seventies and was obviously distressed. The applicant said he was also personally upset by the news as it was unexpected and was compounded by the loss of his mother in 2024. He said that shortly after the call he left for his stepfather's house which was a 5-minute drive from his own house. A short time after noon on that day the applicant notified the respondent that he would not be attending work as he was taking personal leave.

[19] The applicant said that he visited his stepfather approximately three times per week, that he was a significant person in his life and that the applicant and the applicant's sister were the main support persons for the applicant's stepfather. The applicant also said he was close to his aunt and spoke with her once a week. He said his stepfather was very close to his sibling.

[20] The applicant said that his work with the respondent was safety critical, that the respondent regularly reminds its employees of the importance or working safely and that these were factors that were on his mind when he called in to take personal leave. He said that he was too distracted by grief to work safely and taking the day off was the only responsible option he had in the circumstances.

[21] The applicant said he remained with his stepfather until his sister arrived in the afternoon after which he then returned home. At home, the applicant spoke with his partner, Ms. Boon. He said he had been in touch with Boon through the day and she had expressed her concern to him about the level of grief that he was experiencing. He said that during the conversation with Ms. Boon at home Ms. Boon urged him to come with her to a dinner she had arranged with friends at a local restaurant to take his mind off things. He said he resisted the idea as he felt miserable and did not want to socialise. He said after further discussion with Ms. Boon he ultimately agreed to go.

[22] At the restaurant the applicant saw and approached Mr. Ryan. He said Mr. Ryan refused to shake his hand. Mr. Ryan left shortly after he saw the applicant.

[23] The applicant and his partner and friends had drinks and dinner at the restaurant, stayed for the Australia Day fireworks and went home.

[24] The applicant said that because of his interaction with Mr. Ryan he thought he should advise the company that he took personal leave for a family-related matter rather than physical illness. He provided the respondent with a statutory declaration on 27 January 2025 saying he was unable to attend the previous day due to 'family matters.'

[25] Ms. Boon's evidence as to events on 26 January 2025 was that she did not go with the applicant to his stepfather's house. She said that she had made arrangements to meet with her mother and sister for breakfast and to meet with some friends later in the day. Ms. Boon said while the applicant was at Mr. McNamara's home, she contacted him by telephone and suggested that he call the respondent and take personal leave for the day given that he was clearly distressed. Ms. Boon said the applicant told her that he had taken her advice and told the company that he would not be attending. Ms. Boon said that after the applicant returned home, he was in a gloomy disposition. She said she felt bad about going out with friends for dinner and leaving him at home. She said she prevailed upon the applicant to come out with her and her friends to take his mind off things. She gave evidence that the applicant resisted but eventually agreed. Ms. Boon drove the applicant and herself to the restaurant and back again later that evening.

[26] Both the applicant and Ms. Boon were cross-examined at length.

[27] The applicant was a reserved person of few words and not a particularly impressive witness. When tested, his recollection of the details of events and conversations was poor. 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.

[28] Unsurprisingly, the respondent focused on the shortcomings of the applicant's answers in cross-examination and what were said to be key inconsistencies in the versions of events given by the applicant and Ms. Boon. The respondent challenged the applicant's credit and submitted that his version of events lacked credibility.

[29] Ms. Boon was a better witness than the applicant. Her answers were clear, responsive and more detailed.

[30] The respondent submitted that amongst the discrepancies in the two versions of events were firstly, that the applicant said he came to the view that he was incapable of working on his own and contacted the respondent to request personal leave without discussing the matter with Ms. Boon. On the other hand, Ms. Boon's version was that it was she who suggested to the applicant that he was not fit for work and should call in sick.

[31] Secondly and more significantly, the respondent submitted that contrary to what was said by the applicant, Ms. Boon's evidence confirmed that the applicant was aware of the plans to go out to dinner on the evening of 26 January before he called in to request personal leave on that day and had discussed this with Ms. Boon. The evidence of Ms. Boon on the point was as follows:

And did you know that he had work that day?---He did say something about having to go to work - - -

And that's - - -?---Yes. That's why he wasn't - he wasn't coming out with me because he was going to work.

Okay. So when you say that you knew he wasn't going out with you when had you discussed that with him?---Well, he knew I was going out for the day. He knew my celebrations for the day.

Right. So he knew and you discussed with him that morning that you were going to go out with your friends? Or that that - - -?---Well, yes. I was going to Wingdang. So, yes.[5]

[32] Later in cross-examination in response to questioning about her discussion with the applicant at home on the afternoon of 26 January Ms. Boon said:

Okay. And what do you discuss with Mr Jenkins at that point?---I told him that he needs to - how do you say it? Like, he's - he was kind of depressed. So, yes, he needs to come out and come with me and go out.

So you suggest to him that he comes with you to the lagoon?---Yes.

But he'd already told you previously that he wasn't able to come to the lagoon?---Well, he said he was working. So - - -

So he wasn't going to come with you to the lagoon?---He wasn't. He had - there was no plans for him to go to the lagoon.

Initially. You'd asked him and he'd said, 'No, I'm working'?---Well, yes. He said he was working.[6]

[33] I do not think the evidence of Ms. Boon can be taken as confirmation of the respondent's contention. The reference to the applicant knowing that Ms. Boon was 'going out for the day' could be understood as the applicant being aware of Ms. Boon's plans for breakfast with her mother and sister and meeting with her friends later that day, as opposed to the arrangements for the evening. I accept from the evidence that Ms. Boon and the applicant had discussed the fact that the applicant was rostered to work on the afternoon/evening of 26 January, but I do not consider that the evidence establishes that the applicant and Ms. Boon had discussed and planned for the applicant to take time off on that day to attend dinner in the evening, prior to the applicant calling in to request personal leave. Ms. Boon said that she joined up with her friends on the afternoon of 26 January "and then they decided they were going to the Lagoon".[7] Ms Boon also expressly rejected the proposition that any plans had been made and said that the decision for the applicant to attend was only made when she discussed the matter with the applicant at home on the afternoon of 26 January 2025. I accept her evidence on the point.

[34] Before the hearing of this matter, the respondent applied to the Commission for orders for the production of documents by the applicant. Three orders were made directed to the applicant, Ms. Boon and the Lagoon Restaurant being the restaurant that the applicant attended on 26 January 2025. The orders required the production of the following documents from the applicant, Ms. Boon and the restaurant, respectively:

(i) A copy of all communications, including but not limited to text messages, iMessages, WhatsApp messages, and messages sent or received using any other messaging platform or application, between you and any other person, in the period 1 January 2025 to 27 January 2025, that refer to or otherwise relate to:

the Lagoon, Lagoon Restaurant, and/or Lagoon Deck Bar & Kiosk;

your work commitments for 26 January 2025; and/or

(ii) A copy of your telephone call records for 26 January 2025.

(iii) A copy of any communications between yourself and Ms Victoria Boon on 26 January 2025, including but not limited to text messages, iMessages, WhatsApp messages, and messages sent or received using any other messaging platform or application.

(i) A copy of all communications, including but not limited to text messages, iMessages, WhatsApp messages, and messages sent or received using any other messaging platform or application, between you and any other person, in the period 1 January 2025 to 27 January 2025, that refer to or otherwise relate to:

the Lagoon, Lagoon Restaurant, and/or Lagoon Deck Bar & Kiosk;

the dinner that you attended on 26 January 2025; and/or

Mr David Jenkins' attendance at the dinner you attended on 26 January 2025.

(ii)(a) A copy of: records of any calls between yourself and Mr David Jenkins on 26 January 2025; and

(b) any communications between yourself and Mr David Jenkins on 26 January 2025, including but not limited to text messages, iMessages, WhatsApp messages, and messages sent or received using any other messaging platform or application.

3. (i) A copy of any booking record(s) for 26 January 2025 in relation to the table for which Mr David Jenkins and/or Ms Victoria Boon had a reservation that day, located on the deck of the Lagoon venue.

(ii) A list of all RSVPs, likes or comments on any social media platform for any event held at the Lagoon, Lagoon Seafood Restaurant, and/or Lagoon Deck Bar & Kiosk on 26 January 2025 that references Mr David Jenkins and/or Ms Victoria Boon.

[35] The applications were not opposed and orders were made for the production in the above terms. Nothing was produced in response to the orders.

[36] The applicant and Ms. Boon were cross-examined about their responses to the notices. The applicant said that he regularly deleted his phone records, other than messages, to free up storage space[8] and that he did not receive a monthly call summary from his provider. He said he used a mobile plan and simply received a monthly bill by text setting out he amount to be paid. The applicant accepted that he had received text messages from the respondent on 24 January 2025 advising him that he was rostered to work on 26 January 2025. A message of that kind would be caught by the notice directed to the applicant. The applicant also accepted that he confined his search for messages to messages on 26 January 2025 only. In that latter respect at least, I have serious reservations that the applicant has fully complied with the notice to produce directed to him, At the very least, the applicant has taken a cavalier attitude to, or misunderstood, the obligations imposed on him by the notice.

[37] Ms. Boon said she regularly deleted emails and call logs from her phone but that she did not tend to delete text messages.[9] She said she had examined her phone records including 'Facebook Messenger' and did not have any call records showing discussions between herself and the applicant. However, both witnesses said that they did not delete messages and there were no records of any messages between themselves that fell within the scope of the notices. Both also accepted that they spoke to each other during the course of 26 January 2025. Had the evidence in relation to the notices been confined to records held by the applicant I would place only very limited reliance on the absence of records of the kind referred to in the notices, particularly given the applicant's concession that he confined his search to messages sent or received on 26 January 2025. There was no such evidence from Ms. Boon. The evidence of Ms. Boon, including in relation to her response to the notice, supports a conclusion that there were no messages exchanged between the applicant and Ms. Boon of the kind described in the notice directed to Ms Boon. I conclude that to be the case.

[38] The applicant submitted that there was no valid reason for the termination of his employment. The applicant said this was so because he had not engaged in any misconduct but rather had legitimately obtained access to personal leave in circumstances where he and his family were grieving the loss of a relative and the applicant was not in a mental state of mind that would have allowed him to work without placing himself and his colleagues at risk of harm. The applicant submitted that once the respondent had become aware of the applicant's circumstances and in the absence of any evidence to contradict the applicant's explanation, the respondent was unable to discipline let alone terminate the applicant. Instead, the applicant said the respondent had presumed misconduct and steadfastly adhered to that conclusion when the evidence was to the contrary.

[39] The respondent submitted that there was a valid reason for the termination of the applicant's employment because the applicant misused his sick leave entitlements and thereby exhibited a lack of integrity and a disrespect for the respondent. The respondent said that the evidence showed that the applicant drove his vehicle to and from his stepfather's house on 26 January 2025 without difficulty and that driving of vehicles from the vessel to the dock was precisely the work that the applicant was rostered to perform for the respondent on 26 January 2025. The respondent also pointed to the terms of the application which the applicant had authorised which focused on the carer's duties the applicant undertook for his stepfather as the reason for his absence, rather than the applicant being personally distressed or unfit to perform work himself.

[40] In its consideration of predecessor provisions to s.387(a), the former Industrial Relations Court of Australia confirmed that the expression "valid reason" means a reason that is sound, defensible or well founded.[10] It was there said that a reason that it capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE of the former Workplace Relations Act 1996.[11] Although the wording of the present provisions differ, the approach continues to apply to the issue of "valid reason" under s.387(a).[12]

[41] When considering whether there is a valid reason relating to the conduct of an employee, the Commission must decide whether, on the balance of probabilities, the conduct said to have been engaged in by the employee actually occurred.[13] The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.[14]

[42] The Agreement conferred an entitlement to personal/carers' leave in the following circumstance:

35.1. Personal leave is available for absences due to genuine personal illness or injury, or an illness, injury or unexpected emergency of a member of the Employee's Immediate Family or member of the Employee's household that requires the Employee to care for or support that person.

[43] In order to be satisfied that there was a valid reason for the dismissal here I must conclude that the applicant was either not affected by the events he described such that he was unable to attend work, or that the applicant was not only not so affected but had also decided, either by himself or in discussion with Ms. Boon, to use his personal leave for the illegitimate purpose of absenting himself to allow for his attendance at a social gathering on the evening of 26 January 2025.

[44] The respondent did not contest that the applicant was notified of the death of his relative on the morning of 26 January 2025, or that the applicant attended his stepfather's home to provide support on the morning of that day. The proposition advanced was that the applicant used these events as an excuse to phone in sick so that he could attend a social event later in the day. I do not think that this is borne out by the evidence. I accept Ms. Boone's evidence that the applicant 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 applicant's well-being that the applicant ultimately agreed to attend the evening event. I do not accept that there was any decision to attend this event made by the applicant, or the applicant with Ms. Boone, prior to this late afternoon discussion at the applicant's home.

[45] 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. The respondent 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 of 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. The evidence was also that Ms. Boon, rather than the applicant, drove to the event later in the evening. Although, as the respondent pointed out, the applicant did not provide medical evidence in support of the proposition that he was physically unwell and unable to drive, I am satisfied given the evidence of the applicant and Ms. Boon that after sitting with his grieving stepfather for a number of hours the applicant 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.

[46] Having regard to all the evidence in this case I am unable to conclude that the conduct, said by the respondent to have been engaged in by the applicant, occurred. I therefore conclude that there was no valid reason for the dismissal relating to the applicant's capacity or conduct. This weighs in favour of a conclusion that the termination was unfair.

Section 387(b) and (c) - notice of reason for dismissal and opportunity to respond

[47] The applicant was given notice of the reason for his dismissal and an opportunity to respond. The matter that is required to be taken into account under s.387(b) of the Act is whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[15] Since I have found that there was no valid reason in this case, there is nothing to weigh under this heading. The same view has been adopted in relation to s.387(c)[16] and the same approach applies.

Section 387(d) - any unreasonable refusal to allow a support person to assist in discussions relating to the dismissal

[48] The applicant and the respondent did not engage in discussions relating to the dismissal. There was an exchange of correspondence between them. There is no evidence of any refusal to allow a support person to participate in discussions relating to the dismissal. This is a neutral consideration in this case.

Section 387(e) - unsatisfactory performance - warnings

[49] The dismissal did not relate to unsatisfactory performance, but rather alleged misconduct on the part of the Applicant. This factor is not relevant to the present circumstances.

Section 387(f) and (g) - size of the employer's business and absence of dedicated human resources management specialists or expertise

[50] The respondent did not contend that the size of its enterprise or the absence of dedicated human resources expertise had an impact on the procedures followed in effecting the dismissal. I do not consider that either of those factors had an impact on the processes that were followed and I consider these to be neutral considerations in this case.

Section 387(h) - other relevant matters

[51] The Applicant had almost four years' service with the Respondent at the time of his termination. There was some limited evidence as to his employment history. Mr Ryan said the applicant was counselled in 2024 for failure to report damage to a vehicle. The applicant disputed that this was the case. He said that the only instance he could recall of vehicle damage was an incident which he reported in accordance with the respondent's policies.

[52] I consider that the applicant has a satisfactory work history over reasonable period of time with Qube. There were no other instances of other disciplinary processes in relation to use of personal leave or for any other reasons. I think the applicant's work history with the respondent weighs in favour of a conclusion that the dismissal was unfair.

[53] I have also taken into account that the applicant advised the respondent of the reason for his non-attendance shortly after it occurred. The respondent adhered to its position that the applicant had engaged in misconduct even though the applicant provided an explanation and evidence of the bereavement. If the respondent were of the view that in light of the explanation the applicant was not entitled to personal leave under the Agreement, that entitlement could have been withheld. Instead, the respondent proceeded with the termination of the applicant's employment. This worked harshly against the applicant.

[54] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.

[55] In considering an appropriate remedy in a case of unfair dismissal, regard must also be had to the legislative object set out in s.381 of the Act. This includes an emphasis on the remedy of reinstatement[17] and on ensuring that a "fair go all round" is accorded to both the employer and employee concerned.[18]

Is reinstatement of the Applicant inappropriate?

[56] The applicant seeks reinstatement to his previous position and the recovery of lost wages. The respondent opposed reinstatement. Mr. Ryan gave evidence that the applicant's conduct had resulted in the respondent losing trust and confidence in the applicant and his ability to comply with the respondent's policies and future expectations. Having regard to my conclusions in relation to "valid reason", this evidence is not persuasive on the issue of reinstatement. The applicant said he enjoyed his job and even though he felt he had been treated unfairly he did not hold a grudge and if reinstated, he would work to the best of his capacities for the respondent. I am satisfied that the employment relationship can and should be restored.

[57] I consider that reinstatement is the appropriate remedy. I am satisfied that I should make an order reappointing the applicant to the position in which he was employed immediately before the dismissal within fourteen days of the date of this decision pursuant to s.391(1)(a). An order to that effect will accompany this decision.

[58] I also propose to make an order to maintain the continuity of the employment and the period of continuous service of the applicant with the employer pursuant to s.391(2).

Reinstatement - is it appropriate to make an order to restore lost pay?

[59] Section 391(3) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

[60] Section 391(4) of the Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

(a) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[61] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.[19]

[62] I consider it to be appropriate in the circumstances to make an order to restore lost pay. Such amount should take account of each of the matters referred to in s.391(4). I note that the applicant had taken some steps to mitigate loss and had obtained alternative casual employment after his dismissal. I also note that the applicant was paid a sum in lieu of notice on termination.

[63] The parties are directed to confer and provide agreed orders as to the amount of lost pay for the Applicant within seven days from the date of this decision. In the absence of agreement, brief written submissions (not exceeding 4 pages) should be provided by that date to enable me to determine the appropriate amount to be included in any order.

[4] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[10] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at p. 373.

[12] BlueScope Steel (AIS) Pty Ltd v Agas [2014] FWCFB 5993at [63].

[13] Edwards v Giudice [1999] FCA 1836 (23 December 1999) at paras 6-7.

[14] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24. See also Yew v. ACI Glass Packaging Pty Ltd [1996] 71 IR 201 at 205-206 per Wilcox J.

[15] See Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Reseigh v. Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[16] Read v Gordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[18] BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 at [73].

[19] Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

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David Jenkins v Qube Ports Pty Ltd

At a glance

Court

Decision date

Source

Judgment (130 paragraphs)

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

Parties

Legislation Cited (1)

Cases Cited (1)