A Melbourne wharfie dismissed for allegedly sharing a photo of bikini-clad female colleagues in a hot tub and calling a junior coworker a “c*nt” has been reinstated to his position by the Fair Work Commission. The 62-year-old’s Fair Work unfair dismissal claim detailed how he also allegedly told a coworker that he stuck his c*ck in his Subway sandwich. However, the Commission ruled that many of the allegations used to fire him weren’t backed up with evidence.
This unfair dismissal claim – Robert Smith v Qube Ports Pty Ltd [2025] – is one of the most shocking Fair Work cases you’ll likely ever read.
Wharfie’s unfair dismissal win after employer’s allegations fall flat at Fair Work
Sixty-two-year-old Robert Smith began working for Qube Ports as a stevedore in 2009. The company is a port terminal operator at the Port of Melbourne. The Fair Work Commission made a point of noting that it’s “well established” that the working environment at ports is “robust,” where inappropriate language is common.
Up until the events leading to his termination of employment, Mr. Smith’s tenure at Qube Ports was without any issues. The Commission noted that he had been promoted to a level 6 stevedore and was “valued” by the company for his skill and experience.
According to Mr. Smith’s Fair Work unfair dismissal claim, things started to go pearshaped in February 2024. This was when Mr. Smith was given a formal warning for violating Qube Ports’ drug and alcohol policy. The violation was due to Mr. Smith testing positive for THC (mairjuana) in December of the previous year.
The disciplinary process began on 27 March 2024 with what the Fair Work Commission referred to in unfair dismissal proceedings as the Facebook Photo Incident. Mr. Smith, acting as foreman, was working in the hold of a ship with three other male stevedores. One of those stevedores was Jeremy Churchward, who would later be involved in several other incidents with Mr. Smith. According to Mr. Churchward, Mr. Smith started boasting about two female colleagues who had been sending him photos of themselves. The other stevedores didn’t believe him, however, telling Mr. Smith that he was “full of it.”
Wanting to prove that he was telling the truth, Mr. Smith told his workmates that he had the photos saved on his phone “just in case.” He then showed them a photo of two female colleagues in bikinis, sitting in a hot tub together. Mr. Smith then “zoomed in” on the image in a suggestive and “inappropriate” way.” His workmates reacted badly to this, however, telling Mr. Smith that it was wrong that he was showing them the photo. One of the women in the photo later told Qube Ports that Mr. Smith was a “known bully” and requested not to be rostered on shifts with him.
Fair Work unfair dismissal claim: Believed warning was ‘manifestly disproportionate’
This incident led to Qube Ports issuing him a first and final warning on 19 April 2024. The warning explicitly stated that any failure to improve would likely result in termination of employment. Qube Ports also directed its rostering team not to put the female colleagues on a shift with him and told him to avoid contact with them. Mr. Smith and his union lodged a grievance against this final warning on 21 April 2024, believing it was “manifestly disproportionate.” The warning was ultimately upheld.
‘I’m not f*cking working with you c*nt’: Wharfie gets in trouble again
Two days after lodging his grievance with Qube Ports, what the Fair Work Commission referred to as the Hatch Incident took place. Mr. Smith’s Fair Work unfair dismissal claim detailed how on that day he was again acting as foreman and was unloading a ship with Mr. Churchward. Mr. Churchward needed to use the cargo cage to descend into the ship.
As he was fastening his safety harness to use the cage, the stevedore alleged that Mr. Smith approached him and told him to “f*ck off.” He then told him that he was a “f*cking rat” and a “c*nt” and refused to work with him. Mr. Churchward replied saying that he would stay out of Mr. Smith’s way, to which the latter replied, “I don’t work with fucking c*nts like you.”
Faced victimisation allegation
Mr. Churchward told the Fair Work Commission that after this incident he “couldn’t sleep, couldn’t eat” the rest of that day. He said that he had three or four panic attacks because of “how I got treated.” He then complained to Qube Ports via email that night.
The company responded to the complaint by sending Mr. Smith a notice of investigation letter on 3 May 2024. The letter alleged that Mr. Smith had victimised Mr. Churchward during the Hatch Incident. This was because the latter had been involved in a previous investigation into Mr. Smith’s workplace misconduct.
Fair Work unfair dismissal claim: Wharfie claimed he was being victimised
A few days later, Mr. Smith lodged his own formal complaint via his union representative. He alleged that he was “being victimised” and discredited, and that his confidentiality had been breached. He further alleged that colleagues were calling him a “sexual predator and stalker.”
He expressed concern that people at work were “trying” to get him dismissed and indicated he was prepared to provide names and details in a meeting. He said that he hoped Qube Ports “can get to the bottom of all this.” Mr. Smith claimed that it was “starting to take a toll” on him and that he didn’t want it to affect his work performance.
“You condescending c*nt”: The Toilet Car Incident
Mr. Smith went without further incidents for the next few months. But on 5 October 2024, he was involved in what the Fair Work Commission dubbed the Toilet Car Incident with Mr. Churchward. Mr. Churchward alleged that he and Mr. Smith had a tense exchange about how fast the latter was driving during a ‘go slow’ of a previous shift. Prior to 5 October 2024, Mr. Churchward was warned by the foreman that Mr. Smith was “out to get him that night.”
Mr. Smith’s Fair Work unfair dismissal claim detailed how Mr. Churchward recalled that Mr. Smith suddenly cut off his vehicle and began yelling “you condescending c*nt. You useless piece of sh*t.” Mr. Churchward admitted that he swore back at Mr. Smith and told him he needed to “pull his head in.” When Mr. Smith yelled at him to go and get the toilet car, Mr. Churchward replied: “get your own f*cking toilet car.” Mr. Churchward later said that he knew that Mr. Smith was “just trying to push me around.”
Received yet another warning
In January 2025, Qube Ports sent Mr. Smith a letter detailing the allegations of misconduct against him and that they had been substantiated. In response, Mr. Smith denied using the specific aggressive language alleged. He claimed he only asked Mr. Churchward to stop so one of the other drivers could get out and park the toilet car, and that Mr. Churchward immediately told him to “get f*cked” before driving off.
During unfair dismissal proceedings, the shift manager later provided evidence to the Fair Work Commission that the only person to formally report the incident was Mr. Smith. She said that he asked her to speak to Mr. Churchward for “swearing” at him and “refusing” to do what he was asked.
‘I spat in it and put my c*ck in it’: The Subway Sandwich Incident
The final incident detailed in Mr. Smith’s Fair Work unfair dismissal claim occurred on 27 November 2024, known as the Subway Sandwich Incident. The Fair Work Commission heard that as the “roro gang” (Roll on Roll Off) were pulling up to the “smoko room,” a colleague asked Mr. Smith, “What’s for lunch?” Seeing that another colleague, Mr. Aquilina, had brought a Subway sandwich, Mr. Smith replied, “Subway.” Mr. Aquilina laughed, then Mr. Smith allegedly said “Well I spat in it and put my cock in it.”
The shift manager was the primary witness for this allegation. She testified to the Commission that she pulled up to the crib room and saw Mr. Aquilina visibly upset and shaking while holding a Subway sandwich. Mr. Aquilina told the shift manager that he needed to go home and explained what Mr. Smith had said to him. He said that he wanted to lodge a formal complaint against Mr. Smith.
In response to this and the previous allegations, Qube Ports suspended Mr. Smith in December 2024 and issued a termination letter on 15 January 2025. The termination of employment was based on the specific conduct alleged in the Toilet Car and Subway Sandwich Incidents.
Denied some of the incidents happened
Mr. Smith lodged a Fair Work unfair dismissal claim. He generally denied allegations related to the Hatch and Toilet Car incidents. Mr. Smith claimed they were “nothing more sinister” than two stevedores who clearly did not get on, communicating poorly, inappropriately and ineffectively with each other.
He told the Commission that he has “consistently” indicated a willingness to apologise to the women in the picture for showing their photo without consent. However, Mr. Smith claimed that he was not given the opportunity to do so.
Fair work unfair dismissal claim: Argued foul language was normal at docks
Mr. Smith contended to the Fair Work Commission that he had already been sanctioned for the Facebook Incident with a final warning. He therefore claimed that using this incident to fire him was a disproportionate act by Qube Ports. Mr. Smith also argued that he was treated differently to other employees involved in the same workplace language and banter.
He said that it’s “well accepted” that swearing on the waterfront is not controversial. Nor is it “usually controversial” for stevedores to engage in “robust language” and use explicit language, including directing them at each other. Mr. Smith also pointed out that he was 62 years old with “limited” prospects of gaining similar employment. He argued that his sacking was harsh given his 15 years of service to Qube Ports.
Crucially, he claimed that he was denied procedural fairness as Qube Ports’ allegations letter and its dismissal letter made “no reference” to the company’s stated reason for his termination of employment. Mr. Smith argued that the company denied him a chance to respond to the reason.
Employer said reinstatement would ‘send the wrong message’
Qube Ports argued to the Fair Work Commission that Mr. Smith’s sacking was a valid, sound and defensible response to accumulated misconduct. The company contended that it had “multiple valid reasons” for the termination. These included Mr. Smith’s admitted misconduct in the Facebook Photo Incident and by victimising, targeting and swearing at a junior employee, Mr. Churchward.
Qube Ports also highlighted that Mr. Smith exhibited misconduct by swearing at and intimidating Mr. Aquilina during the Subway Sandwich Incident. The company also drew attention to Mr. Smith’s alleged pattern of workplace bullying and his alleged dishonesty during internal investigations. It said that he had “no remorse” and that reinstatement was inappropriate due to a “fundamental” loss of trust and confidence in him.
The company warned the Commission that were he reinstated, it would “send the wrong message” to staff involved in the incidents and create major issues for colleagues who gave evidence.
Fair Work sided with wharfie at unfair dismissal claim hearing
The Fair Work Commission heard Mr. Smith’s unfair dismissal claim in September 2025. It determined that some of the reasons Qube Ports cited for dismissal were invalid. Regarding the Subway Sandwich and Toilet Car Incidents, the Commission didn’t accept that Mr. Smith engaged in the conduct “in the way alleged.” It found that these incidents didn’t constitute valid reasons for termination of employment.
The Commission noted that the only direct evidence of the sandwich incident came from a shift manager who “clearly had a pre-determined view” about Mr. Smith. It said that this “coloured” all her subsequent interactions with and about him. The HR manager who conducted the investigation was also found to have failed to consider a complaint by Mr. Smith in which he accused the shift manager of victimising and targeting him.
Workplace bullying allegation quashed, but photo incident acknowledged
Turning to Qube Ports’ allegation that Mr. Smith had bullied coworkers, the Fair Work Commission found that “no direct allegation or complaint” had been made about this. It also considered the female colleague who called him a “known bully.” The Commission said that “asserting” that someone is engaging in workplace bullying doesn’t mean they actually are.
While the Fair Work Commission found that there was a valid reason for Mr. Smith’s termination of employment, it also concluded that he had been denied procedural fairness and that his dismissal had been harsh. It noted that he hadn’t been notified of the valid reason (the Facebook Incident) and therefore had no opportunity to respond to it prior to his dismissal.
Was singled out for swearing, dismissed harshly
The Fair Work Commission also agreed with Mr. Smith’s argument that he was treated differently by managers when it came to swearing. It pointed to the shift manager’s lack of policy knowledge, noting her understanding of Qube Ports’ workplace bullying obligations was limited to “reading the policies and procedures.”
The Commission also agreed with Mr. Smith that his termination of employment was unduly harsh considering his near-retirement age and 15 years of service. Ultimately, it concluded that the valid reason for his sacking was “outweighed” by factors related to procedural fairness and harshness.
Wharfie reinstated and given back pay
The Fair Work Commission noted that Mr. Smith still needed to fully understand the offence that he caused and that he was “careless” about the impact of his behaviour on coworkers. However, it rejected Qube Ports’ assertion that trust had fundamentally broken down.
The Commission therefore ordered that Mr. Smith be reinstated to his former position within 21 days, with continuity of service. Qube Ports was also ordered to provide backpay but halved the sum by 50%. It deemed this reduction was appropriate as Mr. Smith had to bear some consequence for his actions.
Read more: 8 Ways to Avoid Being Sacked
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