They Warned Him. Then They Fired Him for Something Else. Here’s Why That’s a Problem.

A recent Fair Work Commission decision is a masterclass in how a misconduct process can fall apart, not because the behaviour was acceptable, but because of how the employer handled the paperwork, the process, and the evidence.

Case: Qube Ports Pty Ltd v Robert Smith [2026] FWCFB 157

Decided: 30 June 2026

Outcome: Permission to appeal refused. Reinstatement upheld.

What Happened?

Robert Smith was a stevedore at Qube Ports in Port Melbourne. He’d been there since 2009. In early 2024, he showed photos of two female colleagues in bikinis to male coworkers, and zoomed in on the images in a way the Fair Work Commission described as suggestive and inappropriate. Qube issued him a first and final warning.

Then, in late 2024, three more incidents were alleged, including a crude remark about a colleague’s sandwich, a swearing altercation, and claims that he had victimised a coworker who had reported the original photo incident.

In January 2025, Qube fired him. The termination letter referenced the two late-2024 incidents only.

Commissioner Connolly found that those two incidents had not been substantiated. He reinstated Smith with a 50% reduction in back pay to account for the misconduct that occurred. Qube appealed. The Full Bench refused permission to appeal.

Lesson One: If You Warned Him for It, You Can’t Fire Him for It Without Saying So

This is the central trap in this case, and it’s a common one.

The bikini photo incident was the only conduct the Commissioner accepted as a valid reason for dismissal. But Qube had already dealt with that. They issued a warning in April 2024. The termination letter in January 2025 made no mention of it. It focused entirely on the later incidents that couldn’t be proven.

The result? Smith was never formally notified that the bikini photo incident was the reason for his dismissal. He wasn’t given a chance to respond to it. And under the Fair Work Act, that matters enormously.

Under section 387 of the Act, a valid reason for dismissal is only part of the test. The employee must also be:

• Notified of the valid reason in terms that are clear and specific
• Given a genuine opportunity to respond to it

Qube fell short on both counts. The only mention of the prior warning in the whole dismissal process was a passing reference in the HR manager’s notes from the show-cause meeting. That’s not a notification. That’s a footnote.

What this means for your business

If you issued a warning and you’re now considering dismissal partly because of that prior conduct, you need to say so explicitly. Put it in the show cause letter. Raise it in the meeting. Give the employee a chance to respond to the whole picture, not just the latest incident. A prior warning sitting in a file is only useful if you actually rely on it and tell the employee you’re doing so.

Lesson Two: Investigation Records Are Not Evidence

Qube ran a thorough investigation. They interviewed employees. They kept detailed records. They had notes from conversations with people who witnessed some of the alleged incidents.

The problem? Most of those people didn’t give evidence at the hearing.

The Commission is not bound by the rules of evidence, but it does weigh it carefully. And when you put direct, live, cross-examined testimony up against interview notes from someone who isn’t there to be questioned, the interview notes rarely win.

The Commissioner found that where Qube’s case rested on hearsay records and the employee gave direct evidence denying the conduct, he preferred the direct evidence. The Full Bench backed that up. Giving greater weight to live, testable evidence over investigation documents is entirely within the Commissioner’s discretion.

There was also a specific concern about one of Qube’s managers, Ms Heveren, the shift manager. The Commissioner found she had a predetermined view that Smith should have been dismissed after the bikini photo incident, and that this coloured her evidence about the later incidents. Her account of the sandwich incident was the only direct evidence of it, and the Commissioner didn’t accept her as a reliable witness.

That’s a significant finding. It didn’t just undermine one allegation. It weakened Qube’s credibility across the board.

What this means for your business

If the conduct is serious enough to dismiss someone over, you need witnesses who will give evidence. Investigation records are a starting point, not a finish line. Think carefully about who will actually appear at a hearing if it comes to that. And make sure the people managing the process don’t have a visible axe to grind it will be noticed.

The Bigger Picture

The conduct in this case was not trivial. Showing zoomed-in photos of female colleagues to a group of male coworkers is a serious workplace behaviour issue. It affected those women. The Commissioner acknowledged that.

But Qube chose to issue a warning rather than dismiss at the time. Having made that call, they then tried to use the same conduct as the backbone of a later dismissal without telling Smith that’s what they were doing.

Meanwhile, the other incidents they relied on in the termination letter couldn’t be substantiated. Their investigation records didn’t translate into the kind of evidence that holds up under scrutiny. And a key witness had a documented bias.

The result was reinstatement of a 62-year-old waterfront worker with 15 years of service, plus partial back pay. Not because he was squeaky clean. Because the process didn’t hold up.

Frequently Asked Questions

Can I rely on a prior warning as part of my reason to dismiss?

Yes, but you need to tell the employee you are doing so. A warning on file is only useful if it’s brought into the dismissal process explicitly. Include it in the show-cause letter, raise it in the meeting, and give the employee a clear opportunity to respond to it as part of the reason for dismissal.

Do I need witnesses to appear at a Fair Work hearing?

You are not legally required to call every witness, but if your case relies on what someone told your HR team during an investigation, and that person doesn’t appear, the Commission may give their account little weight compared to direct evidence from the employee. If the conduct is serious enough to justify dismissal, plan for the possibility that the decision will be challenged.

What if I issued a warning but now think the conduct was serious enough to dismiss?

That is a difficult position. You have essentially set your own benchmark by issuing a warning. If new conduct occurs, you can rely on the prior warning as context and as part of the cumulative picture, but you need fresh, substantiated misconduct to justify dismissal. The termination must be based on grounds you can prove and have communicated clearly.

Can my HR manager’s personal view of the employee affect the outcome of a hearing?

Yes. If the Commission finds that a key witness or decision-maker held a predetermined view of the employee, it will take that into account. It can affect the weight given to their evidence and may also support a finding that the employee was treated unfairly compared to others.

Need help getting a dismissal process right?

Getting the process right before you pull the trigger on a dismissal is the difference between a clean exit and an expensive mess. HR Gurus works with business owners every day to structure misconduct processes that stand up. If you’re dealing with a performance or conduct issue right now, talk to us.

Get in touch with HR Gurus today.