Sacked on the spot after accidentally running over the boss's galah

What happened

Blake O'Keeffe started working for a small family business run by Gregg Dunshea on his private property while he was still at school, first as a casual and then as a labourer once he left school. The Commission later described it as a small fencing business in a regional area, with only two employees. Mr Dunshea described him as "part of the family". The family's pets had the run of the property, including a galah called Crackers.

On the afternoon of Friday 6 August 2021, one of Mr O'Keeffe's last jobs was to reverse a truck out of the shed and drive it into another part of it. Crackers was sitting on the ground nearby. The bird had bitten him before, so instead of picking it up he tried to get it to perch on a mop, then on a wooden broom. Crackers instead ran under a parked truck and kept moving further under it as he tried to coax him out.

Believing the bird was safe there, Mr O'Keeffe got into the truck, checked each mirror and the reversing camera, and rolled slowly down the driveway. He did not see Crackers walk out from under the parked truck, and a wheel ran over him. When he found the bird he fetched Mr Dunshea and said sorry. Mr Dunshea told him: "It's okay don't worry about it".

The dismissal

On Monday morning Mr Dunshea reviewed the CCTV footage. When Mr O'Keeffe arrived and said he had looked behind him, Mr Dunshea told him he had become someone he despised, dismissed him for negligence with immediate effect and handed him a letter. The whole exchange lasted no more than six minutes.

Mr O'Keeffe applied to the Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). He lodged it outside the 21-day time limit, but the Commission had earlier found exceptional circumstances and extended the time.

The small business code

Because the business had fewer than 15 employees, it was a small business, and a small business dismissal that complies with the Small Business Fair Dismissal Code is not unfair. The Code allows summary dismissal, meaning dismissal without notice or warning, when the employer believes on reasonable grounds that the employee's conduct is serious enough to justify immediate dismissal. Following the Full Bench in Ryman v Thrash Pty Ltd [2015] FWCFB 5264, the Commission asks whether the employer genuinely held that belief and whether it was reasonable, judged objectively.

The business argued that the negligent killing of Crackers was serious misconduct, comparable to theft or fraud, and broke a repeated direction about the bird. Deputy President Lake was not satisfied that the conduct, reasonably considered, was serious misconduct, so summary dismissal was not available. Nor had the business taken the Code's other path of giving a warning and a chance to respond and improve. The Code defence failed.

Why there was no valid reason

The Commission then considered the factors in s 387, starting with whether there was a valid reason related to the worker's conduct. A valid reason must be "sound, defensible or well founded", and the Commission must itself be satisfied that the conduct happened and was serious enough to justify dismissal.

The Deputy President watched the CCTV footage and found that the death was an accident. He had tried twice to move the bird, checked his mirrors and camera and drove slowly. Given the bird's small size and position on the ground, it was "unfortunate but unsurprising" that he did not see it.

On the alleged direction, the Commission accepted only an understanding that whoever was nearby would take reasonable steps to keep an animal safe, and found no more formal direction than that. The conduct was not malicious or deliberate and at most might have warranted a written warning.

The process was also unfair. Mr O'Keeffe was told the reason but given no real chance to respond, which mattered given his youth and shock. The Commission weighed the small size of the business against about seven years of diligent service, and found the dismissal harsh, unjust and unreasonable.

How much was awarded

Reinstatement was not appropriate, given the broken relationship. In a separate decision on 14 February 2022 the Commission found he would probably have stayed at least another 26 weeks at $701.25 a week, which is $18,232.50. It deducted the $7,872.78 he had earned in a lower-paid job he started on 23 September 2021, leaving $10,359.72, then took off 20% for contingencies such as a young worker moving on.

The business asked for four weeks' pay, saying it was small and any award would hurt it. The Deputy President accepted the amount might be felt sharply, but ordered it to pay $8,287.78. Nothing can be awarded for shock or distress.

What this means for you

An honest accident is not misconduct just because the result is upsetting. The Commission will look at the evidence itself, here the CCTV footage, to decide what the worker actually did and how serious it was.

If you run a small business, the Code protects you only if you follow it. Before dismissing someone on the spot, ask whether the conduct really justifies immediate dismissal, and give the employee a proper chance to respond.

If you have been dismissed, act quickly. Mr O'Keeffe was allowed in late only because the Commission found exceptional circumstances, and the time limit for an unfair dismissal claim is 21 days from the dismissal taking effect.