Blog and Case Review: Robert Smith v Qube Ports Pty Ltd [2025] FWC 2632

When a Sandwich Joke and Bikini Photos Lead to Reinstatement: The Curious Case of Qube’s Stevedore

The Fair Work Commission’s decision in Robert Smith v Qube Ports Pty Ltd [2025] FWC 2632 should make every HR manager in Australia sit up straight. It’s a case that reads like a script from a wharfside black comedy — crude jokes about Subway sandwiches, photos of female colleagues in bikinis, swearing matches over who should drive a “toilet car” — and ends with the employee reinstated despite years of behavioural issues.

The Backstory

Robert Smith, a 62-year-old stevedore, had worked for Qube at the Port of Melbourne since 2009. By all accounts, he was experienced and competent. But from 2023 onwards, his record started to crack:

• Drug test breach (positive THC) in December 2023.

• Facebook bikini photo incident in March 2024 — he showed male colleagues images of two female co-workers in bikinis, “zooming in” suggestively.

• A final warning issued in April 2024 for this conduct.

• Allegations in late 2024 that he swore at colleagues, called one a “condescending cunt,” and told another he’d “spat in” and “put his cock in” their Subway sandwich.

On 15 January 2025, Qube dismissed Smith for serious misconduct, citing breaches of its Workplace Behaviour Policy, Code of Conduct and values of “Integrity, Reliability, Inclusion and Zero Harm.”

Blog and Case Review: Robert Smith v Qube Ports Pty Ltd [2025] FWC 2632

What the Commission Found

Commissioner Connolly cut through the noise:

• Valid Misconduct: The bikini photo incident was serious, disrespectful, and breached company policy.

• Already Punished: But Qube had already dealt with it via a final warning. They couldn’t rely on it again to justify dismissal.

• Other Allegations Collapse: The “toilet car” swearing match? Just two workers trading insults — “robust language” normal on the wharf. The Subway sandwich comment? No direct evidence; the only manager who claimed it happened had a “pre-determined view” against Smith. Bullying? No direct complaints, only rumours and unsubstantiated claims.

In short: Qube had one good reason, but they’d already used it. Everything else fell over.

Why the Dismissal Was Harsh

Despite acknowledging Smith’s misconduct, the Commission found the dismissal harsh and unjust because:

• He wasn’t told the bikini photo incident was the real basis of dismissal.

• He wasn’t given a proper chance to respond to bullying and dishonesty allegations.

• He’d given 15 years’ service, was nearing retirement, and had limited re-employment prospects.

• Swearing and banter were rampant on the waterfront; he was treated differently from others who behaved the same way.

The result? Smith was reinstated with continuity of service and half his lost backpay.

The Bigger Picture

The case leaves us with uncomfortable questions:

1. Are we normalising toxic cultures? The Commission openly acknowledged that swearing and explicit insults are “not controversial” in stevedoring. Does this mean workplaces with entrenched misconduct get a free pass?

2. Double punishment is off-limits. Qube’s fatal mistake was punishing Smith once and then trying again later. Once you issue a “final warning,” you’d better mean it.

3. Procedural fairness trumps substance. Even when an employee’s conduct is offensive, if the process is flawed, reinstatement can follow.

Why This Case Matters

Employers reading this should be alarmed. The Commission has signalled, once again, that process is king. You can have a worker who jokes about putting body parts in a sandwich, but if you don’t follow the letter of procedural fairness, you risk being forced to take him back.

For unions, the case shows the enduring power of representation: the MUA stood by Smith through every allegation, and it paid off.

For the public, it paints a picture of waterfront workplaces where crude humour, abuse, and blurred boundaries are shrugged off as “robust culture” — and the legal system bends to accommodate it.

Final Word

This case is not about whether Robert Smith was a model employee. He wasn’t. It’s about how Qube Ports bungled its dismissal process so badly that a man with 15 years of service, but a record of highly inappropriate behaviour, gets his job back.

The message? Employers must nail both the substance and the process. Get one wrong, and you’ll be forced to rehire someone you were certain had no place left in your business.

Do you want me to make this blog even more provocative by drawing a comparison with the CFMEU’s history of misconduct (from your other documents) — framing this case as part of a broader culture of tolerance for bad behaviour in unionised industries?

Formal Case Review

Tribunal: Fair Work CommissionMember: Commissioner ConnollyDate of Decision: 5 September 2025Outcome: Unfair dismissal established; reinstatement with continuity of service; 50% backpay.

Background

• Robert Smith, a 62-year-old stevedore, commenced with Qube in 2009.

• Dismissed on 15 January 2025 after allegations of misconduct:

  • Swearing at a colleague during a dispute over a “toilet car.”

  • Making a crude remark about contaminating another worker’s Subway sandwich.

• He was already on a first and final warning for the March 2024 “Facebook photo” incident, where he showed bikini-clad images of two female colleagues to male co-workers.

• Qube argued there were multiple valid reasons, including bullying, harassment, dishonesty, and breaches of policy.

Smith lodged an unfair dismissal claim under s.394 of the Fair Work Act 2009.

Valid Reason for Dismissal

• The Commission found there was a valid reason relating to Smith’s conduct in the Facebook photo incident (showing and zooming in on bikini pictures of colleagues, urging others to “take a look”).

• However, Qube had already investigated and punished this incident with a first and final warning.

• Other alleged misconduct (toilet car, sandwich incident, bullying) was not substantiated on the evidence.

Procedural Fairness

• Smith was not formally notified that the valid reason for his dismissal (Facebook incident) would be relied upon.

• He was not given a proper opportunity to respond to allegations of bullying and dishonesty, which emerged later.

• Commissioner Connolly held this denial of natural justice weighed heavily towards unfairness.

Findings

• Smith’s conduct was inappropriate and breached Qube policies, but:

  • It was not malicious, predatory, or intentionally harmful.

  • The “toilet car” and “sandwich” allegations could not be proven.

  • Bullying claims were unsupported; no direct complaints or credible corroboration.

• He was treated differently from other stevedores, where swearing and banter were commonplace and often ignored.

• The shift manager (Heveren) was found to have a pre-determined view against Smith, colouring her evidence.

Remedy

• Dismissal was found harsh and unjust because:

  • He had 15 years’ service and was nearing retirement age.

  • He was not told of the real valid reason nor allowed to respond.

  • He was treated differently to others in similar circumstances.

• Reinstatement was ordered within 21 days, with continuity of employment.

• Backpay reduced by 50%, reflecting that Smith’s misconduct was serious and he needed to better appreciate the impact of his actions.

Key Lessons

1. Double punishment impermissible – once misconduct has been dealt with by way of a final warning, an employer cannot later rely on the same incident as a fresh ground for dismissal.

2. Procedural fairness critical – an employee must be explicitly told the reasons relied upon and given the opportunity to respond.

3. Context matters – swearing and “robust language” are commonplace in waterfront culture; context distinguishes misconduct from banter.

4. Management bias undermines process – where a manager clearly wants a worker sacked, their evidence must be carefully scrutinised.

Commentary

This case highlights the tension between valid misconduct and unfair dismissal. The Commission accepted Smith had engaged in serious inappropriate conduct, but the employer’s handling of the matter — inconsistent discipline, failure to notify, and reliance on dubious allegations — meant the dismissal was unfair.

The decision underscores that employers must:

• Document and notify the precise reasons for termination.

• Avoid “piling on” allegations that have not been tested.

• Ensure disciplinary decisions are made impartially, free from the influence of managers with personal agendas.

In short: Qube had a valid reason, but it botched the process. That procedural failure — combined with Smith’s long service and age — tipped the balance towards reinstatement.

Would you like me to now convert this review into a controversial blog-style article, critiquing both the Commission’s leniency and Qube’s procedural failures, to match the tone of your earlier request?