Worker zoomed in on female colleagues' bodies while showing photos to male coworkers
Warning: Graphic language
A 62-year-old stevedore has won reinstatement to his port job despite conduct the Fair Work Commission (FWC) found would have justified dismissal, after his employer failed to follow proper procedures when terminating his employment.
The case arose when the port terminal operator dismissed the worker for multiple alleged instances of serious misconduct, including showing male colleagues photos of female coworkers in bikinis while urging them to "take a look at this."
The worker argued his dismissal was unfair, accepting that some misconduct had occurred but maintaining that his employer had already addressed the photo incident through a final warning rather than dismissal.
The employer defended the termination based on a pattern of bullying and inappropriate behaviour, but the Commission found most allegations were not supported by credible evidence.
Photo incident reveals inappropriate workplace behavior
The central misconduct occurred on 27 March 2024 when the stevedore, working as a foreman in a ship's hold with three other male workers, showed photos of two female colleagues in bikinis to his coworkers during their shift.
The FWC found the worker had "zoomed" into the images of the women's bodies while encouraging colleagues to look, creating an inappropriate workplace environment that violated company policies.
Evidence showed the worker was Facebook friends with the two women and accessed the photos through his social media account while on shift, despite having no authority as a foreman to use his phone for showing images of coworkers.
The incident prompted formal complaints from the affected female employees, who denied ever providing such photos or posting them on their Facebook accounts.
Company management conducted an investigation and issued the worker with a first and final warning on 19 April 2024, also implementing measures to prevent him from being rostered with the complainants going forward.
The warning letter stated that failure to improve conduct would likely result in termination of employment.
Additional allegations lack credible support
The employer cited additional misconduct allegations, including an incident on 27 November 2024 where the worker allegedly told a colleague eating a Subway sandwich, "Well, I spat in it and put my c*ck in it," and verbal abuse incidents involving calling coworkers "condescending c*nt" and "useless piece of sh*t." However, the Commission found insufficient evidence to substantiate these claims.
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The primary witness to these alleged incidents provided inconsistent testimony and had a personal relationship with one of the female complainants from the photo incident.
Other potential witnesses either refused to give statements or could not recall specific details when interviewed by management.
The Commission noted that robust language and swearing were commonplace in the waterfront workplace environment, with evidence showing that such conduct was regularly engaged in by both stevedores and managers.
The lack of contemporaneous complaints about most incidents and the emergence of detailed allegations only during the final investigation process undermined their credibility.
Procedural failures undermine valid dismissal grounds
Despite finding the bikini photo incident constituted valid grounds for dismissal, the Commission determined the worker was not properly notified this formed the basis for termination.
The dismissal letters dated 17 December 2024 and 15 January 2025 made no reference to the March 2024 conduct, instead focusing on the unsubstantiated November 2024 allegations.
The employer had already investigated and addressed the photo incident through progressive discipline, issuing a final warning rather than immediate termination.
The FWC found that the company's subsequent decision to dismiss based primarily on unproven allegations, while failing to reference the established misconduct, violated procedural fairness requirements.
The worker's union representative had lodged a grievance about the final warning in April 2024 that was never properly resolved by management.
The Commission noted that had the employer acted decisively on the bikini photo incident at the time, dismissal would have been justified and procedurally sound.
Employment history supports second chance
The Commission considered the worker's 62 years of age and 15-year employment record as significant factors supporting reinstatement over monetary compensation alone.
Evidence showed he was generally regarded as a skilled and capable employee who had progressed to senior-level positions within the company.
Evidence included a petition from 42 workplace colleagues supporting the worker's return, demonstrating that employment relationships could be restored without ongoing workplace disruption.
The FWC found no evidence of previous complaints about inappropriate behaviour toward female colleagues or workplace bullying during his lengthy employment.
The worker consistently expressed willingness to apologise directly to the affected women for showing their photos without consent, though management denied him this opportunity.
His demonstrated ability to comply with workplace expectations over many years suggested the employment relationship could be successfully restored.
Reduced compensation reflects misconduct severity
While ordering reinstatement, the Commission reduced back pay compensation by 50 percent to acknowledge the worker's established misconduct in the photo incident and its significant impact on workplace relationships.
This approach balanced recognition of unfair dismissal procedures with appropriate consequences for proven policy breaches.
The Commission noted the worker's limited understanding of why his behaviour was problematic, stating he did not fully appreciate "the inappropriateness of his actions in objectifying these women."
When pressed about why showing female colleagues' photos was inappropriate, the worker responded he didn't know, suggesting it was "because they're in bikinis or something, maybe."
The reinstatement order required compliance within 21 days and maintained continuity of employment and service recognition.
The case demonstrates how procedural failures in dismissal processes can undermine otherwise justified disciplinary action, requiring employers to act decisively on proven misconduct rather than accumulating unsubstantiated allegations.
