He accepted “he zoomed into the pictures of his two female co-workers”, which he had found on Facebook.
He also agreed the conversation had not been appropriate for work.
While Fair Work Commission, with Commissioner Scott Connolly, determined Smith could have been fired for the Facebook photo incident, he found Qube’s dismissal of the wharfie was unjust.
“I am not satisfied Mr Smith is a bully or that he has engaged in conduct justifying the termination of his employment in the circumstances of the case.”
He was unsatisfied the logistics company had proved the Subway sandwich incident had occurred.
The FWC found Smith’s age, service to the company, and mistakes on Qube’s part outweighed his poor conduct.
Qube was ordered to backpay Smith in addition to giving him back his job.