Blake O'Keeffe v The Trustee for Dunshea Family Trust
[2022] FWC 74
•18 january 2022
| [2022] FWC 74 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Blake O’Keeffe
v
The Trustee For Dunshea Family Trust
(U2021/7725)
| Deputy President Lake | BRISBANE, 18 january 2022 |
Application for an unfair dismissal remedy – where the Respondent is a small business - where the Applicant was dismissed because of the accidental death of the Respondent’s pet galah – where there was no negligence or misconduct on the part of the Applicant – where there was no valid reason for the Applicant’s dismissal – where the Applicant was not afforded any procedural fairness
Blake O’Keeffe (the Applicant) brought an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), claiming he was dismissed from his employment with The Trustee For Dunshea Family Trust (the Respondent) and that dismissal was harsh, unjust and unreasonable. He had been employed by the Respondent casually since 2014 and then on 17 February 2017 commenced as a labourer once he finished school.
The Applicant was dismissed on 9 August 2021 and lodged this application with the Fair Work Commission (the Commission) on 31 August 2021, outside the 21-days as required by the Act.[1] However, following a hearing on 26 October 2021 I found that there were exceptional circumstances warranting the grant of an extension of time. My decision in respect of same was published on 28 October 2021.[2]
As to the other matters that s.396 of the Act requires me to consider, I am satisfied that the Applicant was a person protected from unfair dismissal as he earned less than the high-income threshold, had served the minimum employment period and his dismissal was not a genuine redundancy. It was uncontentious that the Respondent had less than 15 employees (in fact, there were only two) and therefore was a small business to which the Small Business Fair Dismissal Code (the Code) applied.[3] However, what was in dispute was whether the Respondent had dismissed the Applicant in accordance with Code and, if not, whether the Applicant had been unfairly dismissed. I will deal with each of those matters in a moment.
A directions hearing was held on 9 November 2021 and further directions were issued for the filing of submissions and evidence in respect of in respect of those matters ahead of the hearing scheduled for 17 December 2021 via Microsoft Teams.
The Applicant sought to be represented at that hearing, which was not opposed by the Respondent. Even so, I must still consider whether permission ought to be granted under s.596 of the Act. Given the Applicant’s relatively young age, inexperience in legal matters and limited ability to represent his own interests, I am satisfied that it would be unfair not to allow him representation, particularly in circumstances where the Respondent does not oppose that representation. The presence of the Applicant’s representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed the Applicant to be represented by Mr Ellacott from Saines Legal at the hearing. Gregg Dunshea, the primary person responsible for representing the Respondent Trust, appeared on its behalf.
Incident leading to dismissal
The facts in this case were not in dispute. The Respondent was a small business conducted by Mr Dunshea on his private property for which the Applicant had worked conscientiously and diligently for several years in a casual capacity whilst studying and then more permanently once he left school. He worked closely with Mr Dunshea, who described the Applicant as “part of the family”. He was familiar with the Dunshea’s various pets, including their dogs and beloved galah, Crackers.
On 6 August 2021, an incident occurred which led to the Applicant’s dismissal. Much of it was captured on CCTV footage. It was a Friday afternoon and the Applicant was nearly finished for the day. One of his final tasks was to move a truck. To do so, he had to reverse it out of and then drive it into another part of the shed. He was about to do so when he noticed Crackers sitting on the ground. He was concerned that Crackers would be unsafe if he remained there while the Applicant reversed the vehicle. It was common practice to move the bird – or any other of the Dunshea’s pets that may be around the work site – when necessary to keep them safe while work was being performed.
So, the Applicant set about moving Crackers to a safer place. He did not want to pick him up because when he had tried to do so previously, Crackers would bite him. Instead, the Applicant picked up a nearby mop to try and persuade Crackers to perch upon it so he could be moved to higher ground. Crackers did not do as the Applicant had hoped. The Applicant thought it might be because Crackers did not like the aluminium of the mop’s handle, so he walked over to where he recalled seeing a wooden broom earlier in the day and attempted to use that instead. He figured that Crackers had a wooden perch in his cage and so may be more amenable to hopping on the broom. However, Crackers still did not do as the Applicant had hoped. Instead, he ran under another truck that was parked nearby. The Applicant poked the broom’s handle under the vehicle a number of times to try and coax Crackers out, but the bird kept moving further under the vehicle.
After a couple of attempts, the Applicant assumed the bird was content beneath the parked vehicle and would stay there long enough for him to move the other truck. Believing Crackers was safe, the Applicant walked a couple of meters to the truck that he was tasked with moving.
The Applicant got in the truck, checked each of his mirrors and the reversing camera, and when he could see no obstructions, began to roll slowly down the driveway. Unfortunately, despite his checks, the Applicant did not see Crackers leaving his shelter beneath the parked vehicle and did not notice when the wheel of the reversing car squashed him.
The Applicant drove the truck into the shed and parked. A few moments later, the Applicant walked out of the shed and noticed something on the ground. He went to it and upon closer observation realised it was Crackers. At that moment, he was not sure what had happened but because the bird was “fully inflated” and not moving, he immediately went to get Mr Dunshea.
He and Mr Dunshea quickly returned to look at the bird. It was only when Mr Dunshea picked up the crumpled Crackers that the Applicant realised he had been run over. Until then, the Applicant had been unsure about the cause of death because he thought that if Crackers had been run over, he would have been flat. Mr Dunshea told the Applicant that he must have run over the bird. The Applicant said he was so stunned and sorry, the only word he could get out was “sorry”. Mr Dunshea said, “It’s okay don’t worry about it”, before walking away with Crackers in his hands. The Applicant collected his things and left for the day. He called his parents to tell them what had happened.
On the following Monday morning, Mr Dunshea reviewed the CCTV footage of Friday’s events. He was upset when he realised that the Applicant had known that Crackers was in the vicinity of the vehicles. When the Applicant arrived a short time later, Mr Dunshea immediately told him he could not believe the Applicant had not looked behind him when reversing. The Applicant told Mr Dunshea that he had looked but that he had not seen the bird. Mr Dunshea 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”. Mr Dunshea said he was terminating the Applicant’s employment, effective immediately, for negligence and handed him a letter to that effect. The Applicant took the work keys off his key ring, put them on the bench and left. The whole exchange lasted no more than six minutes.
The Applicant stated that he would never do anything to intentionally hurt an animal and he has been responsible for the care of his own pets. He was very shocked and sorry when he realised what had happened. Mr Dunshea accepted that the Applicant’s conduct was not deliberate.
Contested fact
Mr Dunshea’s evidence was that there was a directive in place – which had been repeated on multiple occasions – whereby, “a vehicle or plant under [the Applicant’s] control was not to be operated when the bird was in [the Applicant’s] vicinity on the ground and not unless direct visual contact with the bird elevated off the ground on a perch at a safe distance was established.”
The Applicant rejected the idea that such a direction had ever been given. His evidence was that he had never seen any such directive in all his time working for the Respondent and this alleged directive would be entirely inconsistent with the informal way Mr Dunshea did everything. The Applicant stated that Mr Dunshea would sometimes say, “Watch out for Crackers” but there were no rules that he could not be on the ground nor instructions about how to move the bird. The Applicant said that Crackers had the run of the entire property and was, being unable to fly, frequently on the ground. The Applicant was of the view that Mr Dunshea’s attempt to point to a specific direction had been made up in response to this claim.
Was the Applicant dismissed in accordance with the Code?
Section 396 of the Act requires consideration, prior to the merits of the matter, of whether the dismissal was consistent with the Code. The Code, which came into operation on 1 July 2009, provides that:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
As set out in the Full Bench’s decision in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services, in assessing whether the Respondent complied with the Code’s summary dismissal section, I must determine two things. First, if the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second, whether that belief was reasonable, when considered objectively.[4] Whether a reasonable investigation was carried out will be a relevant factor in determining if the second element is met.
The Respondent submits that under the Code, it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee has committed serious misconduct justifying dismissal. The Respondent points to theft and fraud as examples of conduct that might warrant immediate dismissal and likens the “negligent” killing of Crackers to such conduct. He alleges that the Applicant did not take adequate precautions when moving the bird or manoeuvring the vehicle to ensure Crackers’ safety. Further, the Respondent contends that the Applicant’s attempts at moving the bird were not in compliance with the work direction that had previously been given.
The Respondent contends that it was the Applicant’s negligence and lack of care and attention that caused Crackers’ death and that this outcome was preventable and foreseeable by the Applicant and a reasonable person in his position. On that basis, the Respondent puts the negligence of the Applicant at the level warranting summary dismissal.
The Applicant submits that Crackers’ death was an accident and not a result of any negligence on his part. He had made two attempts to move the bird away from the area and, once Crackers had hidden under the parked vehicle, he thought the bird would be safe. He could not have known the state of mind of the bird any more than he could have anticipated that Crackers would start walking in the path of moving vehicle while it was reversing. Even so, out of an abundance of caution, he repeated checked his mirrors and the reversing camera. Whilst the outcome was deeply regrettable and clearly upsetting, it was not serious misconduct. To that end, the Applicant referred to the definition of “serious misconduct” in regulation 1.07 of the Fair Work Regulations 2009 (Cth) (the Regulations), to which I have had regard but will not reproduce here.
The Applicant asserts that the Respondent has not established the conduct of the Applicant met the requisite standard of misconduct to warrant summary dismissal. Further, even if the Respondent had come to such a view, based on the evidence before the Respondent at the time of the dismissal (and indeed, now before the Commission) that conclusion was not reasonable. Accordingly, the Applicant asserts that the Respondent’s conduct in dismissing him was not consistent with the Code and on that basis, the Applicant submits the jurisdictional objection should be rejected.
While I have no doubt that Mr Dunshea was deeply affected by the loss of his pet galah, based on the evidence before me, I am not satisfied that the Applicant’s conduct, when reasonably considered, constituted serious misconduct. Consequently, summary dismissal was not available to the Respondent at the time the Applicant was dismissed. I will turn now the other limb for termination under the Code.
Under ‘Other Dismissal’, the Code requires that the employer provides a reason or reasons why the employee’s employment is at risk, give the employee with an opportunity to respond and to improve or address the performance gap. The Applicant was not afforded these opportunities because within six minutes of the Applicant attending for work as usual on the Monday morning following the incident, Mr Dunshea had terminated his employment. The Applicant 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. Consequently, I am not satisfied that the Respondent dismissed the Applicant pursuant to the Code. The jurisdictional objection therefore fails, and I must turn to the merits of the Applicant’s substantive application.
Was the Applicant unfairly dismissed?
Submissions
In respect of the factors in s.387 of the Act to which I must have regard, the Applicant submits the Respondent has not proved that it had a “sound, defensible or well-founded” reason for dismissal.[5] I have had regard to, but will not repeat here again, the Applicant’s submissions in relation to the allegations made against him. The Applicant further submits that as there was no valid reason for the dismissal, as a matter of logic, he cannot have been notified of same. The Applicant further submits that he was not afforded procedural fairness or an opportunity to respond before the decision was made to terminate his employment. [6] Nor was the Applicant invited to bring a support person to work on Monday. The Applicant considers these factors to be somewhat irrelevant given there was no valid reason for dismissal. In short, the Applicant submits that consideration of the factors in s.387 of the Act should weigh heavily in favour of a finding that the dismissal was harsh, unjust and unreasonable.
The Respondent disagrees, submitting that there was a valid reason for dismissal. Namely, the Applicant’s negligent conduct which caused the death of the galah. The Respondent was of the view that Crackers’ untimely death was entirely preventable. He also asserts that the Applicant’s conduct was in direct contravention of a directive – as set out above – that had been given to the Applicant on a number of occasions previously with respect to the bird and the Respondent’s other pets. Further, Mr Dunshea told the Applicant that was the reason for his dismissal on the Monday morning following the incident. He listened to the Applicant’s response but was of the view that the Applicant’s conduct was so serious that it warranted summary dismissal. In light of the evidence presented, the Respondent submits it is clear that the Applicant was not unfairly dismissed.
Consideration
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[7]
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[8] and should not be “capricious, fanciful, spiteful or prejudiced.”[9] When determining if there was a valid reason for a dismissal, the Commission must be satisfied that the evidence before it demonstrates that the employee engaged in the alleged conduct. It is not sufficient that the employer reasonably believed, after sufficient inquiry, that the employee was guilty of the conduct. [10] Rather it must be proved, on the balance of probabilities. If that is established, the Commission must then assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.[11]
The Commission is not limited to the reason relied on by the employer.[12] Neither is the employer limited solely to the reason given to the employee at the time of the dismissal to establish a valid reason for a dismissal. That said, relying on other reasons may have implications for the considerations in s. 387 going to procedural fairness.[13]
The first (and primary) reason given by the Respondent for the Applicant’s dismissal was that his negligent conduct and lack of care had caused Crackers’ death. I do not accept that this was a valid reason. While Crackers’ death was no doubt shocking and upsetting for all involved, it was an accident. I have reviewed the CCTV footage. I thus witnessed the attempts made by the Applicant to ensure the safety of the bird. He tried two different objects to perch the bird, specifically taking into account Crackers’ preference for timber over aluminium. He then continued to try and coax the bird out from under the parked car. Crackers would not budge. Thinking that the galah was safe under the other car, but still checking his mirrors and reversing camera, the Applicant went about moving the truck slowly and cautiously. Indeed, upon reviewing the footage it is clear that Crackers’ unfortunate stroll out from under the parked vehicle placed him in front of the truck’s left wheels. Given Crackers’ small size and position on the ground, it is unfortunate but unsurprising that he was not picked up in the Applicant’s mirror checks or by the reversing camera.
The second reason provided for the Applicant’s dismissal in the Respondent’s Form F3 and submissions (though not at the time of his dismissal), was that the Applicant’s conduct also breached the formal directive that had been given with respect to the care of the pets. The Applicant says that no such formal directive was ever given to him. Indeed, he said Mr Dunshea was always very casual about instructions. The evidence before me was that it was not uncommon for Mr Dunshea’s pets to be around while work was being conducted. This, while mostly without incident, comes with some risk. I accept there was an understanding that if an animal was in the vicinity of work being conducted, either the Applicant or Mr Dunshea would take reasonable steps to ensure its safety. The common steps taken when Crackers was the pet in question might be for Mr Dunshea to pick him up or move Crackers to a safer location. The Applicant had long since ceased trying to pick up the bird who attempted to bite him so opted to move him by other means. I am not satisfied that there was any more formal directive than that. With that instruction the Applicant thought he had complied when he left Crackers under the parked car after multiple attempts to move him.
While I have sympathy for Mr Dunshea and his family who obviously cared deeply for this bird, the Applicant’s conduct was not malicious or deliberate. It did not constitute valid reason for his dismissal. At its highest the actions of the young Applicant may have warranted a written warning, but no more.
The Applicant was notified of the primary reason for his termination at the time he was dismissed. He was not provided with a reasonable opportunity to respond. When Mr Dunshea put to him that he had not checked when reversing, the Applicant assured him that he had. However, beyond that, the Applicant was not afforded an opportunity to provide a more detailed response. This was particularly so given the Applicant’s relatively young age and inexperience, and the fact that he was no doubt shocked by the change in Mr Dunshea’s demeanour and his statements about the Applicant’s character. The Applicant’s position must have been particularly difficult given it was coming from someone who had described him as “part of the family” and about an incident for which he felt deep remorse.
A support person was not offered to the Applicant nor was one requested as the dismissal occurred immediately after the Applicant’s arrived at work and he had no notice that his employment was in jeopardy.
This matter did not involve unsatisfactory performance, so I need not consider whether the Applicant was warned in respect of same.
It is not in dispute that the Respondent is a small business that lacks dedicated human resource personnel.
I have also given consideration to the fact that prior to this incident the Applicant had been employed by the Applicant for approximately seven years and had otherwise been a diligent and valued employee.
Having considered each of the factors in s.387 of the Act, I am satisfied that the Applicant’s dismissal was harsh, unjust and unreasonable.
Accordingly, I must now turn to the question of remedy. Given the broken nature of the relationship between the parties, the Applicant does not seek reinstatement. I agree that reinstatement in this case would not be appropriate.
I will make directions allowing the parties with an opportunity to make submissions and provide evidence in respect of what constitutes an appropriate remedy.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s.394.
[2] [2021] FWC 6221.
[3] Fair Work Act 2009 (Cth) s.23.
[4] Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 [41].
[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373; Courtney v Coal Gas Camps Pty Ltd[2013] FWC 7609 [12]-[14].
[6] As required by Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[7] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[8] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.
[9] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371.
[10] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) [23]-[24].
[11] Bista v Glad Group Pty Ltd[2016] FWC 3009; Turvey v Roverworth Pty Ltd [2021] FWC 4593 [67].
[12] Heran Building Group Pty Ltd v Anneveldt[2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000; Turvey v Roverworth Pty Ltd [2021] FWC 4593 [67].
[13] Turvey v Roverworth Pty Ltd [2021] FWC 4593 [67].
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