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I accidentally ran over my bosses bird – Is this grounds for termination?

The recent 2022 Fair Work Commission decision of Blake O’Keefe v The Trustee For Dunshea Family Trust [2022] FWC 74 provides an interesting case study of unfair dismissal by a Bundaberg Fencing business. In its decision, the Commission concluded that the employee, Blake O Keefe, was unfairly dismissed for accidentally running over his bosses beloved pet galah.  

FACTS 

Since 2014, Mr O’Keefe (Employee) was employed at the fencing business of Mr Dunshea (Employer). He had commenced as a casual during high school and continued as a labourer from 2017 up to his dismissal in 2021. The business convened on the respondent’s private property which had many animals on the vicinity.  

At the end of his working day on Friday 6 August 2021, the employee was moving a truck and when reversing, accidentally killed his bosses bird, Crackers (1). CCTV footage indicated that Mr O’Keefe had attempted two times to remove the bird. Furthermore, when the bird moved below the car, he carefully attempted to move the truck ‘slowly and cautiously’ assuming the bird was safely under the car (2).  

Although the employee had maintained that his conduct was unintentional, the Respondent dismissed the employee, stating that that the employee had been negligent (3).  

ISSUE  

  1. Was the dismissal consistent with the Code (Small Business Fair Dismissal Code)?  
  1. If not, had the employee been unfairly dismissed?  

LAW  

The employee applied for an unfair dismissal remedy through s394 of the Act. To access this remedy, the Bench considered s396 of the Act which referred to the Code.  

As a small business, employee dismissals are governed by the Code which outlines that there are two circumstances dismissal is permitted: 

  • Summary Dismissal – Dismissal is permitted without notice or warning if the employer believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal. Serious misconduct includes fraud, serious occupational and health breaches and theft.  
  • Other Dismissal – Dismissal may occur following the giving of reasons in the circumstance that an employee has previously been warned (verbally is sufficient) and the employee was given the employee to respond and rectify their performance. Following the warning, the dismissal is permitted if there is no improvement.  

In the event the dismissal does not fall within the two limbs within the Code, s387 of the Act provides another pathway to determining unfair dismissal.  This section requires the court to determine whether the dismissal was harsh, unjust or unreasonable by taking into account:  

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and 

(b) whether the person was notified of that reason; and 

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and 

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and 

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and 

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 

(h) any other matters that the FWC considers relevant. 

DECISION  

Was the dismissal a ‘Summary Dismissal’? No   

The employer argued that dismissal without notice or warning was on reasonable grounds as he viewed the employees conduct as ‘serious misconduct justifying dismissal’ (4). The employer argued that the ‘negligent’ killing of Crackers amounted to such conduct warranting immediate dismissal.  

The employee maintained that he’d made the necessary attempts to ensure the safety of the bird. (5). He argued that his behaviour did not amount to serious conduct in regulation 1.07 of the Fair Work Regulations 2009.  

The reasonableness of the employer’s actions was a key consideration in determining the summary dismissal. In Deputy President Lake’s finding, he noted the significant impact of the loss on the respondent however he found that Employees conduct was not serious misconduct.  

Could the dismissal be considered an ‘Other Dismissal’? No  

The employee had not been afforded the opportunity to respond to the allegations since he was dismissed the following Monday after the incident. Additionally, he had been given no opportunity to improve – which is required under the Code.  

Since the employer’s dismissal did not fit within the requirements under this limb, it was determined that the dismissal did not fall under this category.  

Was the Employee Unfairly Dismissed?  

The dismissal was valid if the reason could be considered “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced” (6). Deputy President Lake determined that the dismissal of the Employee based on his apparently ‘negligent conduct and lack of care’ was not a valid reason.  

Through the assistance of the CCTV footage, his Honour concluded that the Employee’s attempts at securing the safety of the bird were genuine. Additionally, he preferred the Employee’s assertion that no formal directive had been provided regarding the care of the pets (7).  

LESSONS  

Employers must abide by Workplace Standards 

The employer was clearly devastated by the actions of the Employee and understandably distraught. However, despite his strong feelings, the immediate dismissal was not based on reasonable grounds. The determination of the dismissal as unfair provides a reminder to employers that their dismissal must follow protocol and should not be unreasonable. 

Employees have recourse for Unfair Dismissal  

The employee had an expectation that his employee rights would be protected whilst employed. In this instance, he was unfairly dismissed and his Honour noted that ‘at its highest the actions of the young Employee may have warranted a written warning, but no more’ (8). His pursuit of a remedy provides an example to other unfairly dismissed employees that remedies are available.   

Have you been unfairly dismissed? We can help. 

Our experienced employment law team are here to help. Give us a call to discuss your situation & book in your appointment with an expert employment lawyer today. 

References  

  1. Blake O’Keefe v The Trustee For Dunshea Family Trust [2022] FWC 74, [6], [11]. 
  1. Ibid, [31]. 
  1. Ibid, [13]. 
  1. Ibid, [19]. 
  1. Ibid, [21]. 
  1. Ibid, [29]. 
  1. Ibid, [31], [32]. 
  1. Ibid, [33]. 

HELPFUL LINKS 

This article was written by Luke Borgert and Prini Avia

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