Insult to injury: FWC awards compensation to sacked employee who squished pet galah

In January, Deputy President Lake of the Fair Work Commission found an employer had acted unfairly when he summarily dismissed a labourer for accidentally reversing over the employer’s beloved pet bird, ‘Crackers’. This month, the Deputy President poured salt in the wound by awarding the sacked employee over $8,000 compensation.

The unfortunate events transpired in early-August 2021 when the labourer was nearing the end of his work week and needed to move a truck on the employer’s property. The employer’s small fencing business was conducted from his private property, and it was common practice for the employer’s pets – including dogs and his “beloved galah, Crackers” – to be present at the worksite.

Before the labourer moved the truck on 6 August, he noticed Crackers on the ground and set about attempting to move him to safety using a mop, then a broom, to “try and persuade Crackers to perch upon it so he could be moved to higher ground”. These attempts were unsuccessful and instead, Crackers, ran under another truck parked nearby. The labourer made several further attempts to entice Crackers out from under the parked vehicle but when these failed, he assumed the bird was “content” where he was and set about moving the truck he needed to relocate.

The labourer re-parked the truck, moving the vehicle after carefully checking his mirrors and the reversing camera before he “slowly” rolled down the driveway. Regrettably, the labourer was unable to see Crackers “leaving his shelter beneath the parked vehicle” and remained unaware that the bird’s “unfortunate stroll out from under the parked vehicle placed him in front of the truck’s left wheels”. It was only when the labourer returned from stowing the truck that he noticed Crackers on the ground, not moving, but he did not understand what had happened until the labourer retrieved his employer who, picked up the “crumpled Crackers”, telling the employee he must have run over the bird.   The labourer was shocked and offered an apology, which his employer initially accepted, saying, “It’s okay don’t worry about it”.

By the following Monday, the employer had viewed the CCTV footage and became “upset” when he realised the labourer had known Crackers had been in the vicinity at the time he moved the truck. In an exchange that lasted less than “6 minutes”, the employer told the labourer he “could not believe” the employee had not looked behind him when reversing, rejecting the labourer’s assertions that he had done so and just hadn’t seen the bird. The employer then told the labourer, “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”. Despite the employer accepting the employee’s conduct was “not deliberate”, he advised the labourer he was terminating his employment, effective immediately, “for negligence” and handed him a letter to that effect.

In considering the matter, Deputy President Lake accepted the employer “was deeply affected by the loss of his pet galah” but could not be satisfied that the labourer’s conduct, when reasonably considered, constituted serious misconduct. Furthermore, the Deputy President found the dismissal was not consistent with the Small Business Fair Dismissal Code because the labourer “was provided with no opportunity to properly respond to the allegations that he had driven negligently thus causing Crackers’ death and was offered no opportunity to improve”.

Deputy President Lake acknowledged the employer and his family “obviously cared deeply for this bird”, but determined that Crackers’ death was “an accident” and the labourer’s conduct “was not malicious or deliberate”. The Deputy President commented that having pets in the workplace “comes with some risk” and added that, “at its highest the actions of the young [labourer] may have warranted a written warning, but no more”.

When turning to consider remedy, Deputy President Lake discounted reinstatement as appropriate owing to the “broken nature of the relationship”, notwithstanding that, prior to the ‘Crackers incident’, the labourer had served the employer “conscientiously and diligently” for seven years and had been considered by the employer to be “part of the family”. In settling on a monetary amount, Deputy President Lake assessed that the labourer would have remained in employment for a further period of 26 weeks had his dismissal not been actioned when it was, meaning “a substantial award of compensation would be appropriate”.

The Deputy President commenced his calculations at the compensation cap of 26 weeks’ wages – an amount in excess of $18,000 with respect to the labourer – and subtracted the earnings of the employee since his dismissal (of $7,872), then applied a further 20% discount “to account for the vicissitudes of life”. In settling on a compensation amount of $8,287.78 (gross) as “appropriate and fair”, Deputy President Lake observed:

“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 [employer] have no valid reason for dismissing the [labourer], no process was followed in bringing about the termination. Clearly Crackers was a well-loved member of [the employer’s] family and [the employer] was upset by his death. However, that does not excuse [the employer’s] behaviour. On Friday afternoon, he had told the shocked and remorseful [labourer] not to worry about the accidental death of Crackers. By Monday morning, he had turned on the [labourer] – a young man who had worked for him since he was a teenager – declaring that the [labourer] had turned into someone he despised and dismissed him without warning and without an opportunity to respond.”

O’Keeffe v The Trustee For Dunshea Family Trust [2022] FWC 74 (18 January 2022)

O’Keeffe v The Trustee for Dunshea Family Trust [2022] FWC 298 (14 February 2022)