FWC determines appropriate payment to employee dismissed for killing employer’s galah

FWC determines appropriate payment to employee dismissed for killing employer’s galah

The Fair Work Commission has determined the appropriate payment an employee should receive after an earlier finding that his involvement in killing his employer’s pet galah while at work was accidental, not a valid reason for dismissal, and handled without procedural fairness being afforded to him.

The case, which we earlier reported on (refer below), involved a labourer with seven years experience who had worked for a fence building business owned by a Mr Dunshea and conducted on his private property. The employee was aware that Mr Dunshea had several pets at the premises, including dogs and a beloved galah, ‘Crackers’.

On 6 August 2021, near the end of his shift, the employee needed to reverse a truck and move it to another side of the shed. After noticing the bird sitting on the ground, he thought he had moved it to a safe area but unfortunately killed the bird, leading to his dismissal on the following Monday.

As noted by Deputy President Nicholas, “While Crackers’ death was no doubt shocking and upsetting for all involved, it was an accident…the Applicant’s conduct was not malicious or deliberate…At its highest, the actions of the young Applicant may have warranted a written warning, but no more”.

The Deputy President determined that there was not a valid reason for the termination, nor was he afforded an opportunity to provide a more detailed response or given the opportunity to have a support person present during the meeting.

In submissions to the Deputy President regarding appropriate compensation, the labourer claimed that he had a reasonable expectation of a further 26 weeks employment, amounting to a gross amount of $18,232.50.

He noted his lengthy period of employment, his unblemished disciplinary record, the fact that he had been summarily dismissed, and that his dismissal had been found to be harsh, unjust and unreasonable. In the submission, he declared that he had earned an amount totalling $7,872.78 in the period between his dismissal and the filing of submissions.

In contrast, Mr Dunshea submitted that the awarding of 26 weeks’ pay would be excessive and that four weeks was more appropriate given the size of the business, the stress that he had suffered throughout the incident, and the lack of a dedicated human resource advisor available to him.

In his decision, Deputy President Lake was entirely sympathetic towards the employee, awarding him the maximum amount sought, less a 20% discount, and the deduction of monies earned elsewhere.

The final amount to be paid to the labourer totalled $8287.78.

As he noted,

“While I accept this amount may be felt sharply by a small regional fence-building business, I am also conscious of the fact that not only did the Respondent have no valid reason for dismissing the Applicant, no process was followed in bringing about the termination. Clearly, Crackers was a well-loved member of Mr Dunshea’s family, and Mr Dunshea was upset by his death. However, that does not excuse Mr Dunshea’s behaviour. On Friday afternoon, he had told the shocked and remorseful Applicant not to worry about the accidental death of Crackers. By Monday morning, he had turned on the Applicant – a young man who had worked for him since he was a teenager – declaring that the Applicant had turned into someone he despised and dismissed him without warning and without an opportunity to respond”.

BO v The Trustee For Dunshea Family Trust – [2022] FWC 298

BO v The Trustee For Dunshea Family Trust – [2022] FWC 74

For questions about misconduct, investigations,  termination, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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