A dock worker who was sacked after his boss spotted him at a restaurant just hours after he called in sick to grieve his aunt’s death has been awarded $33,000 in lost wages after he took the company to Fair Work.Â
Fair Work Commission deputy president Thomas Roberts ruled in David Jenkins’ favour last month, concluding he had been unfairly dismissed and ordering the company, Qube, to reinstate him to his Port Kembla position and repay lost wages.Â
Mr Jenkins was awarded $33,798 on account of remuneration lost or likely to have been lost as a result of his employment being terminated.Â
The worker said he was distressed by his aunt’s death, which followed his mother’s passing in 2024, so he applied for personal leave through Qube’s online system around noon, and did not attend his 4pm shift on Australia Day.Â
That night, Mr Jenkins went to dinner at the upmarket Lagoon Seafood Restaurant in Wollongong, where he bumped into his boss Bernie Ryan.
He approached Mr Ryan and offered to shake hands, but the other man declined. Â
Mr Jenkins continued to enjoy drinks and dinner at the restaurant, attended the Australia Day fireworks, and then went home.
Two days later, he received a letter from Qube stating it had received reports he may have engaged in unacceptable workplace conduct by attending the dinner at a time when he could have been working his shift.
David Jenkins attended The Lagoon restaurant (pictured) in Wollongong on Australia Day after calling in sick due to the death of his aunty
David Jenkins was fired from his port job after calling in sick on Australia DayÂ
He was immediately suspended with pay pending an investigation.Â
The following day, on January 29, Mr Jenkins received another letter alleging serious misconduct – specifically, misuse of personal leave on Australia Day, and a breach of the company’s code of conduct and ethics.
He was sacked on March 7.Â
Mr Jenkins maintained that he had taken personal leave in accordance with company policy and argued there was no valid reason for his dismissal.
The company claimed Mr Jenkins acted dishonestly, and had used his aunt’s death as a pretext to allow him to go out to a social function rather than attend work.
The Fair Work Commission’s Deputy President Thomas Roberts accepted Mr Jenkins was depressed when he returned home, and only attended the dinner after his partner’s repeated requests.
He did not accept Mr Jenkins had used his aunt’s death as an excuse to call in sick.
‘I also do not accept that Mr Jenkins was not affected by the family bereavement such that this had no impact on his capacity to work later that day,’ Mr Roberts said.
Mr Jenkins took personal leave from his job after his aunt passed away and was sacked after his boss spotted him at a restaurant when he could have been working his shift (stock)
‘Qube pointed out that (Mr Jenkins) was able to make the journey by car to and from his stepfather’s residence but then assessed himself as incapable of performing driving duties at work.Â
‘However, the distance travelled by the applicant on that day involved driving only a matter of minutes each way. That is materially different from driving vehicles over the course of a full shift at work.’
Mr Roberts said he was satisfied that Mr Jenkins, after sitting with his grieving stepfather for a number of hours, that he made a legitimate assessment that he was incapable of working as required.
He said the worker would have presented a safety risk to himself and others if he had attended his 4pm shift.
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Aussie worker who was sacked after his boss spotted him in a restaurant on his sick day enjoys a hefty payday