Killing employer’s galah doesn’t amount to serious misconduct

Killing employer’s galah doesn’t amount to serious misconduct

The Fair Work Commission has quashed the termination of an employee involved in killing his employer’s pet galah while at work.

The employee had worked for the business as a casual since 2014 and subsequently commenced full-time employment as a labourer on 17 February 2017 after finishing school. The business was owned by Mr D and conducted on his private property. The employee was aware that Mr D 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 Crackers sitting on the ground, he attempted to move the bird to a safe location, ultimately leading to the bird nesting under a stationary vehicle.

The employee got into the truck, checked his mirrors and reversing camera, and began to roll slowly down the driveway. Unfortunately, he did not see Crackers, and his vehicle’s rear wheel squashed him.

Several minutes later, the employee noticed something on the ground. Initially, he was unsure what had happened as Crackers had become fully inflated and was not moving. He immediately sought out Mr D to tell him what had happened, and they both went to inspect the scene.

Mr D told him that he must have run over the bird. The employee was so stunned and sorry, the only word he could get out was ‘sorry’. Mr D replied, “It’s okay, don’t worry about it”.

On the following Monday morning, Mr D reviewed CCTV footage of the incident and became upset when he realised the employee had known Crackers was in the vicinity when he reversed the truck.

Confronting the employee, Mr D told him, “you’ve turned into someone I despise; you’re the worst kind of person, a person who doesn’t think about how their actions will affect other people”. He told the employee that he was terminating his employment with immediate effect for negligence and handed him a termination letter.

In evidence presented before Deputy President Nicholas Lake, the employer claimed there was a directive that no plant was to be operated when Crackers was in the immediate vicinity until visual contact had confirmed he was perched at a safe distance. However, the employee had claimed he was not aware of any such directive other than Mr D sometimes saying, “Watch out for Crackers”.

The Deputy President determined that there was not a valid reason for the termination.

As he noted, “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 was also critical of the process adopted by Mr D in terminating the employee, noting that he was not afforded an opportunity to provide a more detailed response as to the events, nor given the opportunity to have a support person present during the meeting.

The Deputy President agreed that reinstatement of the employee was not appropriate in the circumstances and has given both parties the opportunity to make submissions as to the quantum of the financial remedy he should receive.

BO v The Trustee for Dunshea Family Trust (U2021/7725) 18 January 2022

For questions about misconduct, 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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