The case provides a sticky-beak into the matters the Fair Work Commission will consider when determining whether an employee has been unfairly dismissed, and highlights the importance of (1) having a well-founded and non-prejudicial reason for dismissal; and (2) following a procedurally fair process to reach the decision to dismiss.
Background to the Case
Crackers was a beloved family pet, brought home by the employer’s daughter one day after she found him dodging cars on the main road and unable to fly. Ever since Crackers was a familiar resident known to roam freely on Mr. Dunshea’s private grounds where the employee was employed as a labourer.
The event that led to the employee’s dismissal occurred on a Friday afternoon. The whole incident was captured on CCTV footage, providing a complete birds-eye-view on how the events unfolded.
The employee was finishing up his tasks, which included moving a heavy vehicle out of a shed to the other side of the property. Having seen Crackers in the vicinity of where the truck was parked, and being concerned for the bird’s safety, the employee attempted to coax the bird away from the site and used different broom handles to try to move the bird.
CCTV then showed Crackers running under another truck that was parked nearby. The employee was seen poking a broom handle under the vehicle a number of times to try and coax Crackers out, but the bird kept moving further under the vehicle.
After a couple of attempts, the employee assumed the bird was content beneath the parked vehicle and would stay there long enough for him to move the other truck. The employee then proceeded to move the vehicle he was tasked with moving, but (tragically) drove over the bird who had, unbeknownst to the employee, walked into the direct line of the vehicle. Tragically, Crackers was killed.
The employee, after identifying the bird laying unmoving on the ground, alerted Mr. Dunshea, who picked up Crackers and told the employee not to worry.
On the following Monday morning, Mr. Dunshea reviewed the CCTV footage of Friday’s events. Mr. Dunshea felt that the conduct of the employee was negligent because every reasonable precaution hadn’t been taken to extract the bird from the vicinity of the truck to be moved.
When the employee arrived at work a short time later, Mr. Dunshea immediately told him he could not believe the employee had not looked behind him when reversing. The employee told Mr. Dunshea that he had looked but that he had not seen Crackers. Mr Dunshea said he was terminating the employee’s employment, effective immediately, for negligence and handed him a letter to that effect. The whole exchange took around 6 minutes.
The employee subsequently brought a claim for unfair dismissal in the Fair Work Commission. The Commission then had to determine whether there was sufficient foul play involved in the employee’s conduct to justify instant dismissal.
Terminated effective immediately… what the duck?
Dismissals, where an employee is terminated without being provided any notice (or payment in lieu of notice), are called “summary dismissals” and are only permitted for the worst type of misconduct (referred to as “serious misconduct”).
Serious misconduct is defined in the Fair Work Regulations 2009 as follows:
(2)…conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
The Fair Work Commission found that the employee had clearly taken precautionary measures to try and swoop in and protect Crackers before getting into the vehicle (making two attempts to move the bird away), further the employee was deeply remorseful after discovering what had happened.
Accordingly, the Commission ultimately found as follows:
 While I have no doubt that Mr Dunshea was deeply affected by the loss of his pet galah, based on the evidence before me, I am not satisfied that the Applicant’s conduct, when reasonably considered, constituted serious misconduct. Consequently, summary dismissal was not available to the Respondent at the time the Applicant was dismissed.
The accidental death of the pet is certainly a tragic incident that would trigger a deeply emotional response by the family. However, the Commission found that the conduct of the employee was not malicious or deliberate and at most may have warranted a written warning.
Was the employee offered procedural fairness?
In addition to looking at whether the employee’s conduct was sufficiently grave to meet the definition of serious misconduct, the Commission also looked at whether the employee was shown procedural fairness in the process of being dismissed.
We’ve discussed the broad application of procedural fairness in previous articles, however, generally, this looks like:
- providing adequate notice of a meeting where the possibility of dismissal will be discussed
- allowing a support person to be present
- allowing the employee to respond to the allegations against them
- allowing the employee to respond as to whether termination will be an appropriate outcome.
It is a common misconception that where serious misconduct exists this means it is ok to terminate an employee on the spot, without following any disciplinary process. However, even in cases of serious misconduct a procedurally fair process should be followed, before an employee is dismissed.
In this case the Fair Work Commission found that there was no procedural fairness provided, given that:
- The employee was given no advanced notice of the meeting where he was dismissed
- He had no opportunity to bring a support person to the meeting
- He was not allowed to respond to the allegations against him or whether termination of employment was an appropriate outcome
Ultimately this meant that the Fair Work Commission found the dismissal was unjust and unreasonable, as well as the penalty being harsh.
A separate hearing will follow, where the Fair Work Commission will decide on the appropriate compensation to be awarded to the employee.
About HR Connect
HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.
If you need any assistance in determining the processes to follow when considering taking disciplinary action against employees, please contact the HR Connect Team.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.