The recent unfair dismissal decisions of the Fair Work Commission in Blake O'Keeffe v The Trustee For Dunshea Family Trust [2022] FWC 74 and [2022] FWC 298 have attracted much media attention due to the facts of the case, which relate to the unfortunate demise of a much loved family pet, Crackers the galah.
While the unusual circumstances of the case, which bring to mind Monty Python's legendary Dead Parrott sketch, give rise to both mirth and sympathy, the case nevertheless has some important lessons for employers to consider.
Facts
The Respondent was a small business run by Mr Dunshea on his private property. The Applicant had worked for the Respondent for seven years, initially as a casual and then as a full-time employee. He was described as "part of the family" by Mr Dunshea and familiar with the various pets on the property, including Crackers, a galah. There had been no issues with the performance or conduct of the Applicant up to the incident that resulted in the termination of his employment.
That incident occurred on 6 August 2021. The Applicant had to move a truck, which involved reversing the vehicle. As he was about to do so he was concerned about the position of Crackers, who was sitting on the ground. Pets on the property were commonly moved to keep them safe while work was being performed. Because he was concerned about being bitten (as had happened previously), the Applicant used both a mop (with aluminium handle) and wooden broom in his various attempts to coerce Crackers to move. Those efforts were to no avail and instead had the unfortunate effect of moving Crackers further under the vehicle.
The Applicant assumed that Crackers was content to remain under the vehicle, so he went to the truck and reversed it, checking for obstructions (using mirrors and the reversing camera). Tragically, Crackers moved and was squashed by one of the wheels of the reversing vehicle. The Applicant did not witness this notwithstanding the checks he made.
After parking, the Applicant noticed Crackers, who looked "fully inflated" and was not moving. He called Mr Dunshea who attended and picked up a crumpled Crackers. It was then the Applicant realised the cause of death was the vehicle he had reversed and, in his stunned state, could only offer the word "sorry" before Mr Dunshea said, "It's ok, don't worry about it".
The incident was captured on CCTV footage. Mr Dunshea reviewed that footage on the following Monday morning. Mr Dunshea was particularly upset that the Applicant knew Crackers was in the vicinity of the vehicle. There was then an exchange between the Applicant and Mr Dunshea, in which Mr Dunshea challenged the Applicant as to why he had not checked while reversing and the Applicant responded that he had done so. Mr Dunshea then said, "you've turned into someone I despise, you're the worst kind of person, a person who doesn't think about how their actions will affect other people."
Mr Dunshea then notified the Applicant he was terminating his employment summarily for negligence and provided him a letter to the effect.
The facts above were largely not disputed by either party but there was a contested fact: Mr Dunshea claimed he had previously given a prescriptive direction to the Applicant, specifically "a vehicle or plant under [the Applicant's] control was not to be operated when the bird was in [the Applicant's] vicinity on the ground and not unless direct visual contact with the bird elevated off the ground on a perch at a safe distance was established." The Applicant said this wasn't the case, that Mr Dunshea operated in an informal way and occasionally said, "Watch out for Crackers", but nothing else.
The Outcome
The dismissal, which was covered by the Small Business Fair Dismissal Code (given the Respondent employed less than 15 employees), was found to be unfair.
First, crucially, there was no valid reason for termination. At paragraph 31 of the judgment, Deputy President Lake held:
"The first (and primary) reason given by the Respondent for the Applicant's dismissal was that his negligent conduct and lack of care had caused Crackers' death. I do not accept that this was a valid reason. While Crackers' death was no doubt shocking and upsetting for all involved, it was an accident. I have reviewed the CCTV footage. I thus witnessed the attempts made by the Applicant to ensure the safety of the bird. He tried two different objects to perch the bird, specifically taking into account Crackers' preference for timber over aluminium. He then continued to try and coax the bird out from under the parked car. Crackers would not budge. Thinking that the galah was safe under the other car, but still checking his mirrors and reversing camera, the Applicant went about moving the truck slowly and cautiously. Indeed, upon reviewing the footage it is clear that Crackers' unfortunate stroll out from under the parked vehicle placed him in front of the truck's left wheels. Given Crackers' small size and position on the ground, it is unfortunate but unsurprising that he was not picked up in the Applicant's mirror checks or by the reversing camera."
His Honour also rejected the contention of the Respondent that a formal direction has been given about the safety of the pets but did find there was an understanding that the Applicant would take reasonable care, which it was held the Applicant did.
Deputy President Lake proceeded to observe (at paragraph 33):
"While I have sympathy for Mr Dunshea and his family who obviously cared deeply for this bird, the Applicant's conduct was not malicious or deliberate. It did not constitute valid reason for his dismissal. At its highest the actions of the young Applicant may have warranted a written warning, but no more."
The Commission also held that the Applicant was denied procedural fairness. Deputy President Lake observed: (at paragraph 34):
"The Applicant was notified of the primary reason for his termination at the time he was dismissed. He was not provided with a reasonable opportunity to respond. When Mr Dunshea put to him that he had not checked when reversing, the Applicant assured him that he had. However, beyond that, the Applicant was not afforded an opportunity to provide a more detailed response. This was particularly so given the Applicant's relatively young age and inexperience, and the fact that he was no doubt shocked by the change in Mr Dunshea's demeanour and his statements about the Applicant's character. The Applicant's position must have been particularly difficult given it was coming from someone who had described him as "part of the family" and about an incident for which he felt deep remorse."
In the second decision, which considered the appropriate remedy consequent upon the finding in the first decision the dismissal was unfair, Deputy President Lake held that reinstatement was no longer possible given the significant and permanent fracturing of the working relationship between the Applicant and Mr Dunshea, and ordered compensation be paid by the Respondent instead.
The Lessons
The case, as unusual as its facts are, nevertheless provides lessons for employers when considering whether to dismiss an employee:
- Avoid emotion - This is the key, fundamental lesson that emerges from this case. All steps taken in the decision to terminate employment should be made fairly and objectively. The reason for dismissal should be based on a robust and thorough analysis of the available evidence. There should be a fair process, giving the employee a proper opportunity to respond, with that response fully considered. The disciplinary action taken should be proportionate - termination of employment is generally a last resort and needs to be justified having regard to the circumstances. While an emotional response is sometimes entirely understandable given events (such as the sad loss of a beloved pet), it can militate against the clear, clinical approach that should be brought to decisions to terminate employment.
- Consider independent investigations - Where it is practical to do so, one way to take the emotion out of the fact-finding process is to use a properly qualified, experienced workplace investigator. That investigator can bring the independence and objectivity to the fact-finding process that can sometimes be lost when the evidence is being marshalled and considered by someone who is emotionally invested in the relevant events.
- Offer a fair hearing - Again, while the turn of events might mean the decision maker is not interested in hearing from the employee, it is imperative they be given an opportunity to respond to allegations of misconduct.
- Proportionality - The disciplinary outcome needs to be proportionate to the conduct. In this case Deputy President Lake was of the view a warning might have been appropriate, not termination of employment. When anger or distress informs the decision to terminate employment, it might lead to an outcome that is difficult to defend if challenged before the Fair Work Commission.
- The Small Business Fair Dismissal Code is (almost) a Dead Letter - While the Commission needs to consider the operation of the Code in determining whether a dismissal by a "small business" (less than 15 employees) is unfair, and it offers some helpful guidance as to the process to follow, it rarely alters the fundamental requirements of a fair dismissal such as to lead to a different outcome. The determination of whether a dismissal is fair often rests on considerations that do not lend themselves to a simple checklist. The reductive solution to fair dismissals implied by the Code is illusory.
For further information please contact:
Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
