Worker’s social activities after relative's death triggers misconduct allegations
The Fair Work Commission (FWC) recently dealt with a worker who was dismissed for allegedly misusing personal leave following a family bereavement.
The case arose when the worker took personal leave after learning of his aunt's death, but was later seen at a restaurant that evening, leading to allegations of dishonesty and misconduct.
The worker argued he legitimately took personal leave because he was too distressed by grief to work safely in his safety-critical role.
He maintained that his evening restaurant attendance was unplanned and occurred only after his partner persuaded him to join her to take his mind off the bereavement, emphasising that he had no prior intention to socialise when he requested leave.
Family bereavement triggers personal leave request
The employment relationship involved a stevedore working safety-critical operations at a major port facility, where the worker had been employed for almost four years with a generally satisfactory employment record.
On Australia Day 2025, the worker was rostered for an afternoon shift but received early morning notification that his stepfather's sister had passed away unexpectedly three days earlier.
The worker immediately travelled to his stepfather's home to provide support, spending several hours with his grieving relative, who was described as a significant person in his life.
The worker maintained regular contact with his aunt and visited his elderly stepfather approximately three times per week, serving as a primary support person alongside his sister.
Around midday, the worker applied for personal leave through the company's automated system, citing his distressed mental state and concerns about working safely in his safety-critical role.
He emphasised that his work involved operating heavy machinery where distraction could pose serious risks to himself and colleagues, making the decision to take leave the responsible course of action.
Worker's restaurant attendance creates suspicion
Later that afternoon, the worker returned home and spoke with his partner about the bereavement and his emotional state.
His partner had previously arranged to meet friends for dinner at a local restaurant and, concerned about leaving him alone in his depressed condition, repeatedly urged him to join the group to take his mind off his grief.
The worker initially resisted the suggestion, feeling miserable and unwilling to socialise, but eventually agreed after continued persuasion from his partner, who drove them both to and from the venue.
At the restaurant, the worker encountered the operations manager, who refused to shake hands and left shortly after seeing the worker at what appeared to be a social gathering.
Following this encounter, the worker proactively provided the company with a statutory declaration explaining that he had taken personal leave for family-related matters rather than physical illness, anticipating that questions might arise about his restaurant attendance.
He later provided supporting documentation, including funeral home death notices, when requested by management.
Investigation challenges worker's credibility
The company initiated disciplinary proceedings alleging serious misconduct, misuse of personal leave, and breach of conduct codes based on reports of the worker's restaurant attendance.
Management argued that the worker's ability to drive to his stepfather's home and attend dinner demonstrated fitness for work, particularly since his job involved similar driving duties.
The employer sought extensive document production orders requiring the worker, his partner, and the restaurant to provide communications, booking records, and social media evidence related to the evening's events.
Nothing was produced in response to these orders, with both the worker and his partner stating they regularly deleted phone records and had no relevant communications to disclose.
Cross-examination focused on alleged inconsistencies between the worker's and his partner's accounts, particularly regarding who suggested the personal leave request and whether evening plans existed before the leave application.
The employer argued these discrepancies demonstrated premeditation and dishonesty in the leave request.
Commission finds no valid misconduct occurred
The FWC determined that no valid reason existed for dismissal, finding the employer's misconduct allegations were not proven on the balance of probabilities.
The Commission accepted that the worker's evening restaurant attendance was genuinely unplanned and occurred only after his partner's repeated requests based on concern for his wellbeing.
The decision emphasised the distinction between the worker's brief local driving to support his stepfather versus performing safety-critical duties over a full work shift while emotionally distressed.
The Commission found the worker made a legitimate assessment that grief and distraction would create safety risks, particularly given the employer's emphasis on safe working practices.
Evidence supported the worker's claim that he was genuinely affected by the bereavement, with his partner confirming his depressed mood upon returning home and her concern about his emotional state.
The FWC rejected arguments that the worker used the death as an excuse to attend social events, finding no evidence of premeditation or planning.
Reinstatement ordered as appropriate remedy
The Commission ordered reinstatement within fourteen days, finding the employment relationship could and should be restored despite the employer's claims of lost trust and confidence.
The FWC rejected arguments that the worker's conduct justified permanent employment termination, noting his expressed willingness to continue working to his best capacity.
The decision emphasised reinstatement as the preferred remedy under unfair dismissal provisions, particularly where no genuine misconduct occurred and the worker maintained positive attitudes toward returning to work.
Orders were made to maintain employment continuity and continuous service recognition.
The Commission directed parties to agree on lost pay calculations within seven days, considering the worker's mitigation efforts through securing alternative casual employment and notice payments already received.
The comprehensive reinstatement order reflected the FWC's finding that dismissal was entirely unjustified in the circumstances.
