Two port workers were fired after refusing to work with a colleague who they deemed unsafe. Photo / Supplied
Port workers Paul McMillan and Dion Robin had made a number of complaints about a colleague’s unsafe practices, but when they refused to work a shift with the man, they were fired.
The pair took their case to the Employment Relations Authority after their employment came to an end just two years after they started working for Qube Ports NZ Limited as Terminal Tractor (TT) operators at Gisborne’s Eastland Port.
The authority heard they were found to have committed serious misconduct on the basis they refused to carry out reasonable and lawful instructions – by refusing to work with a co-worker, and coordinating that refusal with each other.
But authority member Sarah Blick found this was not the case and has now reinstated McMillan to his role. Robin was unable to be reinstated as he was on a casual contract.
Qube is an infrastructure and logistics company working out of a number of ports across New Zealand and Australia.
Its business is split between marshalling and stevedoring/receival operations handles approximately 350-400 trucks per day and may have on average two-three vessels for loading at Eastland Port per week, with four gangs (groups of stevedores working together to load a ship) per vessel.
McMillan was on a full-time contract and Robin a casual, and their duties involved collecting log trailers and transporting them to vessel loading areas, where they worked alongside loader operators responsible for loading the logs.
full-timeabout this colleague in 2024 and 2025.
In 2024, McMillan told the authority he reported an incident in which he said the loader operator drove into him while he remained attached to his trailer, after which the loader operator left to refuel.
McMillan told management he did not want to work with the loader operator and the operator was rostered to night shift, reducing their interaction.
On February 16, 2025, McMillan emailed the Port Manager with concerns about the loader operator’s attitude and work practices.
Qube told the authority the Port Manager investigated, reviewed CCTV footage, and moved the loader operator to the day shift for observation.
Although there is no evidence about this investigation from the Port Manager before the authority, Qube said observation of the loader operator found no unsafe behaviour during that monitoring period. In 2025 the loader operator was then brought back to work nights.
Robin also filed two incident reports about the loader operator in October and December 2025.
The December incident involved an allegation that the loader operator loaded logs on to a trailer while the TT was still attached.
Qube’s evidence was that CCTV footage later contradicted both Robin and McMillan’s statements about the incident, and the matter was treated as a communication issue rather than an unsafe act, which the pair both dispute.
However, Qube management did address an issue with the loader operator verbally about some aspect of the concerns.
On January 8, 2026, McMillan, Robin, and one other TT operator were rostered to work that night shift. Prior to loading commencing, all three said they would not work with the loader operator.
Management formed the view the operators had made a coordinated refusal and issued disciplinary investigation letters alleging potential serious misconduct, including refusal to comply with reasonable and lawful instructions and possible coordinated action.
Qube formed the view that the refusals were not motivated by genuine safety concerns but by interpersonal dissatisfaction and a desire not to work with the loader operator.
It also considered that the operators’ actions caused significant operational disruption and undermined trust and confidence.
On February 27, 2026, Qube dismissed McMillan for serious misconduct. On the same day, it advised Robin his actions amounted to serious misconduct and it would not re-engage him in future.
“Had Qube come to the authority with clear evidence of what it did to investigate the prior concerns raised by the applicants, there might be a stronger argument for Qube,” Blick said.
“The authority cannot with confidence at this interim stage say that safety issues were adequately considered, resolved and communicated to the applicants by Qube.”
Qube argued that interim reinstatement of McMillan and Robin would set a dangerous precedent, as employees may believe they can legitimately refuse to work with any colleague they dislike.
It told the authority it would send a message to other staff that withholding labour can be used to influence staffing allocation, creating significant risks for the business.
Blick did not accept the submission on the evidence presented at this interim stage.
McMillan told the authority a dismissal will have a significant impact on his life, providing evidence of his family and financial circumstances, and said his age may mean he is not able to be employed easily.
“Qube has in the past shown a willingness, and ability, to absorb the rostering arrangements on an ongoing basis Mr McMillan is now suggesting, pending the outcome of his substantive application. Overall, I am satisfied there is greater inconvenience to Mr McMillan if he is not reinstated as compared to the inconvenience for Qube if he is.”
Robin told the authority despite being on a casual contract, he was working a fulltime roster with Qube and therefore should be reinstated. He said if he was a true casual worker, Qube would have simply stopped offering him shifts rather than undertake the disciplinary process it did.
McMillan’s application for reinstatement was successful as he was a fulltime employee, while Robin was unable to be reinstated as he was on a casual employment agreement.
Qube did not want to comment on the decision.
Brianna McIlraith is a Queenstown-based reporter for Open Justice covering courts in the lower South Island. She has been a journalist since 2018 and has had a strong interest in business and financial journalism.