By Mike Toten Freelance Writer


An employee applied for personal leave after his aunt died, but on the night of his work shift he was spotted dining in a restaurant. The employee claimed he was grieving and was persuaded to go out to dinner to take his mind off his loss, but the employer claimed he had falsely taken leave to attend the dinner and dismissed him. 

The Fair Work Commission (FWC) came down on the side of the employee and ordered his reinstatement. 

 

Facts of case 

The morning before a work shift, the employee learned that his aunt had died three days earlier. He regularly spoke to the aunt. He drove a short distance to visit and support his stepfather (his aunt’s brother) until his sister also arrived.  

Giving four hours’ notice, he told his employer that he would not attend his work shift and applied online for personal leave, claiming he did not believe he was in a fit emotional state to attend work. 

When he returned home, his partner encouraged him to attend dinner with friends at a restaurant, thinking it would take his mind off things. He resisted at first but reluctantly agreed. However, while at the restaurant, his operations manager saw him. 

The next day at work, he submitted a statutory declaration stating he had taken personal leave for family reasons. However, his employer claimed he had committed “serious misuse of personal leave” and dismissed him following an investigation. He supplied a copy of the funeral home death notice, but the employer said it was insufficient evidence. 

The employer claimed he had falsely called in sick to attend the restaurant dinner instead of his work shift. His job involved truck driving, and he could not claim he was unable to drive because he had allegedly driven to the restaurant (in fact his partner drove him). The employee claimed he was grieving his aunt’s death and believed he wasn’t in a fit state to perform what was regarded as a safety-critical job.  

 

Decision 

The FWC found that the employee had reasonably decided that his emotional state could pose a risk to safety at the workplace and had followed correct procedures for notifying his employer and applying for leave.  

It rejected the “driving argument” offered by the employer, finding that driving work vehicles for a full work shift was totally different to driving a car for a few minutes to his stepfather’s home. The evidence showed that the employer did not intend to attend the dinner at the time he notified his absence from work, but his partner later persuaded him to attend it. 

The FWC found there was no valid reason for dismissal, and ordered reinstatement, with a compensation amount to be determined later. 

 

What this means for employers 

This is another case of an employer apparently being keen to get rid of an employee but letting that motive override a proper investigation and consideration of the circumstances.  

The employer had the option of other less drastic sanctions against the employee, such as declining to pay for his personal leave. 

 

Read the judgment 

Mr David Jenkins v Qube Ports Pty Ltd (Port Kembla) [2025] FWC 2447 (22 August 2025)