Qube Ports Pty Ltd v Robert Smith - [2025] FWC 2898

[2025] FWC 2898

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Qube Ports Pty Ltd
v

Robert Smith

(C2025/9267)

VICE PRESIDENT GIBIAN

SYDNEY, 29 SEPTEMBER 2025

Appeal against decision [2025] FWC 2632 of Commissioner Connolly at Melbourne on 5 September 2025 in matter number U2025/1254 – Stay application – Stay sought against order for reinstatement and payment of lost remuneration – Stay granted on conditions.

Introduction

Robert Smith is a stevedore. He commenced employment with Qube Ports Pty Ltd in 2009 and was dismissed on 15 January 2025. He is 62 years of age. Following his dismissal, Mr Smith applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy. On 5 September 2025, Commissioner Connolly handed down his decision with respect to Mr Smith’s application. The Commissioner ordered that Mr Smith be reinstated to the position in which he was employed immediately before his dismissal, that the continuity of his employment be maintained and that a payment with respect to lost remuneration between dismissal and reinstatement be made, albeit discounted by fifty per cent.

On 22 September 2025, Qube filed a notice of appeal seeking permission to appeal and to appeal from the decision. In its notice of appeal, Qube seeks a stay pending appeal under s 606(1) of the Act. The application for a stay was subject of a hearing conducted before me on 26 September 2025. The reinstatement order made by the Commissioner was required to be put into effect on that day. Following the hearing, I made an order granting the application for a stay subject to certain conditions, including that Qube pay Mr Smith the wages and other payments he would have received had he been reinstated less amounts earned by him in other employment or work. These are my reasons for making that order.

Mr Smith was dismissed as a result of allegedly engaging in conduct that was inconsistent with Qube’s Workplace Behaviour Policy, Code of Conduct and Ethics, and the Qube Employee Handbook, as well as its values of Integrity, Reliability, Inclusion and Zero Harm. Two specific allegations were articulated in the course of the disciplinary process. The first was that, on or around 27 November 2024, Mr Smith asked another employee “What’s for lunch?” to which they replied “Subway” and Mr Smith then told that employee “Well I spat in it and put my cock in it”. The second was that, in or around September 2024, Mr Smith requested another employee drive the toilet car but this employee was unable as they were already driving the breakout cab off the ship and Mr Smith then called the employee a “condescending cunt” and a “useless piece of shit”.

At the hearing before the Commissioner, Qube relied upon two other incidents involving Mr Smith. The first occurred on 27 March 2024 and was referred to by the Commissioner as the “Facebook incident”. In the Facebook incident, Mr Smith showed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qube Ports Pty Ltd v Robert Smith

Details

AGLC: Qube Ports Pty Ltd v Robert Smith [2025] FWC 2898
Case: [2025] FWC 2898
Decision Date: 29 SEPTEMBER 2025

CaseChat Overview and Summary

In the appeal Qube Ports Pty Ltd v Robert Smith, the Fair Work Commission was asked to consider whether the stay of a reinstatement order granted to Mr Robert Smith should be upheld. Mr Smith, a former employee of Qube Ports Pty Ltd, was dismissed and subsequently sought relief under the Fair Work Act 2009 for unfair dismissal. Following a hearing, the Commissioner ordered Mr Smith's reinstatement, a payment of lost remuneration, and the maintenance of his employment continuity. Qube Ports filed an appeal against this decision, seeking a stay of the reinstatement order pending the appeal's determination.

The primary legal issues before the Vice President were whether Qube had an arguable case with reasonable prospects of success on both the question of leave to appeal and the substantive merits, and whether the balance of convenience favoured granting a stay. The Vice President noted that while it is not appropriate to delve deeply into the merits of the appeal when considering a stay application, a preliminary assessment was warranted given the extensive grounds of appeal presented by Qube. The Vice President found that the grounds of appeal, although numerous and detailed, were arguably strong enough to warrant a grant of leave to appeal, albeit not as strong as Qube contended. The Vice President also considered the balance of convenience, weighing Qube's concerns about workplace culture, safety, and employee morale against Mr Smith's potential financial disadvantage if the stay was not granted.

After careful consideration, the Vice President determined that the balance of convenience favoured granting the stay on the condition that Qube pay Mr Smith his wages and other payments he would have received had he been reinstated, less any amounts earned from other employment or work. The Vice President concluded that this condition was necessary to ensure that Mr Smith was not financially disadvantaged by the stay order, especially given his age and current unemployment status. Consequently, the Vice President upheld the stay order subject to the specified conditions.

In summary, the Fair Work Commission upheld the stay of the reinstatement order on the condition that Qube Ports pay Mr Smith his wages pending the determination of the appeal. This decision balances the need to protect Mr Smith's financial interests with Qube's legitimate concerns about workplace dynamics and the potential impact of Mr Smith's reinstatement.

Orders