Work for a small family-owned business on private property
A labourer began working for a small family business when he was still in school but became a regular employee after he finished school. Only two labourers were when employed. The labourer worked on the private property owned by the family. On this private property, the family kept various pets including a galah named Crackers.
Last task of the day
On a Friday afternoon in August 2021, the labourer was about to leave work as he was finished for the day. His last task was to move a truck. To do this, he needed to reverse the truck out of the shed and move it to another spot in that same shed.
Multiple attempts to move the bird to safety
The labourer saw Crackers the galah sitting on the ground. The labourer picked up a mop and tried to coax the bird to hop on the handle. The labourer did not want to pick up the bird as it bit him in the past when he tried to pick it up.
The bird refused to hop on the mop with an aluminium handle. So, the worker took a mop with a wooden handle. Crackers ran under another truck that was parked nearby. The labourer crouched down and poked the mop handle under the truck to coax the bird out but the bird refused to move out from under the truck.
Carefully looked before reversing
The labourer then walked over to the other truck he was supposed to move which was several metres away. The labourer checked his mirrors and the reversing camera on the dashboard and rolled slowly out of the driveway. The labourer squashed the bird under the truck but did not see it. He moved the truck into the shed and when he walked out of the shed, he noticed Crackers on the ground.
Labourer apologised
The labourer called for his boss and his boss checked the bird and said it had been run over. The labourer apologised and the boss said not to worry about it. The labourer then collected his things and left for the day.
Worker dismissed the next day
When the labourer came back to work the next day, his boss informed him that he had looked at the CCTV camera footage and berated the labourer for not looking behind him when reversing. The boss and owner of the family business said that the labourer was the worst kind of person who didn’t think about their actions or how those affected other people. The labourer was terminated immediately for negligence and was given a termination letter. The labourer took the work keys off his key ring and left.
The labourer then filed this application for a remedy for an unjust dismissal.
The employer’s defence
At the Fair Work Commission, the owner of the family business admitted that the labourer had not intentionally run over the pet. However, the boss insisted that he had a directive which he had repeated to the labourer many times: he was not to operate a vehicle when Crackers was on the ground nearby and until the labourer had perched the bird off the ground at a safe distance.
The labourer denied that there was such a directive. He did admit that his boss always said, “Watch out for Crackers” but there was no rule nor instructions to move the bird before moving a vehicle. Crackers had the run of the property and because it could not fly, it was frequently on the ground.
The only question was, was the dismissal based on valid reasons? And if it is, could it be harsh or unreasonable?
Summary dismissal available only for serious misconduct
The FWC pointed out that the labourer had been summarily dismissed when he was given a termination letter and dismissed all in the space of six minutes. Summary dismissals are valid if the reason for the summary dismissal was serious misconduct. Serious misconduct includes acts of theft, fraud, violence and serious breaches of occupational health and safety procedures. And if any of these was the reason for the dismissal, the employer must report the incident to the police.
Negligence, even if true, is not serious misconduct
Since the reason for the dismissal was negligence, it is not any of the reasons categorised as falling under the term “serious misconduct.” Thus, the labourer could not be summarily dismissed, that is, his dismissal could not take effect immediately.
Employer should have followed the process outlined in the Small Business Code
The dismissal should follow a process where the labourer was warned orally or in writing that he or she is at risk of dismissal if they did not improve. The employer must then give the employee an opportunity to respond to the warning and give the employee the opportunity to write what had been wrong. The employer may need to give the employee additional training. And at the meeting where the employee dismisses the employee, the employee must be allowed to have a support person to assist him or her. As a small business, the employer is required to provide evidence of its compliance with these provisions of the Small Business Code that protects employees.
No negligence that validly supports the dismissal
The labourer’s action was not one that constituted serious misconduct. The labourer’s dismissal was anchored on him being negligent and lacking care. The FWC reviewed the CCTV footage and saw that there was no negligence nor lack of care because the labourer repeatedly attempted to ensure Crackers’ safety. The labourer checked his mirrors and reversing camera and he moved the truck slowly and cautiously. Because the bird was small and it was low on the ground, it was not surprising that even after the labourer checked his mirrors and the reversing camera, he did not see Crackers.
No directive given to the labourer
While it had been common experience for Crackers to be in the vicinity where work was conducted, the labourer or the boss picked up the bird and moved the bird to a safer location. There was never any formal directive given. The labourer was satisfied in thinking that he had complied with the practice when he left Crackers under the parked car after multiple attempts to move the bird.
No valid reason for the dismissal
The actions of the labourer were neither malicious nor deliberate and did not constitute a valid reason for his dismissal. His actions warranted a written warning but not dismissal.
No opportunity to respond to the allegations made against him
On the day that the labourer had been dismissed, his employer was overcome with emotion at the loss of his beloved pet but he never gave the labourer the opportunity to respond to his allegation of negligence and lack of care. The labourer is of a young age and he is inexperienced. No doubt he was shocked by his boss’s demeanour and statements about the labourer’s character.
Dismissal was harsh, unjust, and unreasonable
The dismissal was harsh, unjust, and unreasonable. Seeing however the broken relationship between the parties, no reinstatement would be appropriate.
Source:
Blake O’Keeffe v The Trustee for Dunshea Family Trust [2022] FWC 74 (19 January 2022)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/74.html
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