Employee out to dinner while on personal leave? – Why employers must tread carefully

Managing personal leave is one of the more challenging aspects of the employment relationship. The recent Fair Work Commission (FWC) decision in David Jenkins v Qube Ports Pty Ltd [2025] FWC 2447 has reignited discussion around how employers should approach personal leave, especially when grief and mental wellbeing are involved.

In this case, Qube Ports (Qube) dismissed a long-serving stevedore after he was seen dining out while absent on personal leave. The employee, Mr Jenkins, had taken personal leave on Australia Day after learning of his aunt’s death and spending the morning consoling his step-father. He advised Qube that he would not be attending his shift because he was too distracted by grief to work safely.

Later that evening, he reluctantly accompanied his partner to dinner with friends, where he unexpectedly encountered his Operations Manager. On the following day, the employee provided Qube with a statutory declaration stating that family matters prevented him from attending work the previous day. Following this, Qube launched an internal investigation and concluded that the employee had misused his sick leave entitlements, demonstrated a lack of integrity and respect towards the company and was subsequently terminated for misconduct, on the grounds of dishonesty.

However, the FWC took a very different view to this case. Deputy President Roberts found that:

• the worker had genuinely assessed himself unfit for duty in a safety critical role;
• a short five-minute drive to his stepfather’s house and a partner-driven trip to dinner were not comparable to driving vehicles for an entire shift;
• the worker had promptly notified his employer of his absence and his reason; and
• his otherwise satisfactory four-year work history weighed against dismissal.

On the balance, the FWC found the dismissal to be harsh, unjust and unreasonable, ordering to reinstate the employee with continuity of employment, lost pay and a continuous period of service.

The decision reinforces several key lessons for employers:

1. Personal leave covers more than just physical illness: It extends to circumstances where an employee is unfit for work due to injury, illness, or the impact of a family member’s illness or death. Employers should tread carefully before questioning an employee’s use of their entitlement.
2. Activities outside work don’t necessarily undermine personal leave: Attending a social outing does not automatically mean an employee was fit for duty. The legal test is whether the employee was genuinely incapable of performing their role safely or effectively. Context matters.
3. Evidence requirements must be reasonable: While employers can request evidence, such as medical certificates or statutory declarations, insisting on strict documentation (e.g., a death certificate) may not be reasonable or proportionate.
4. Procedural fairness is critical: Employers must conduct fair and balanced investigations, weigh all evidence, and consider proportionate responses before terminating employment.
5. Proportionality matters: Even if there is doubt about the legitimacy of the leave, immediate dismissal is rarely the appropriate response. Employers should contact Mapien to discuss what next steps should be considered before moving to termination.

The Qube decision is a timely reminder for employers that while it is appropriate to investigate suspected misuse of personal leave, dismissing an employee based solely on perceptions of inconsistency can be a costly mistake.

Employers should approach personal leave with empathy, clarity, and procedural fairness, recognising that emotional wellbeing is increasingly protected under workplace law, including through psychosocial hazard obligations. A measured, fair, and legally sound approach remains the safest path to avoid expensive and disruptive disputes.

If you have questions or concerns regarding managing personal leave, please contact us below and one of Workplace Strategists will be in touch within 24 hours.