Fair Work sheds light on the consequences of the employer's actions amid the tragedy
The Fair Work Commission (FWC) has recently ruled that the decision of an employer to dismiss a worker after accidentally causing the death of a beloved pet bird was “unjust and unreasonable,” saying the incident “warranted a written warning, but no more.”
The worker said he would never do anything to hurt an animal intentionally and he has been responsible for the care of his own pets. He also said he was “very shocked and sorry” when he realised what had happened but the employer claimed he was “negligent.”
The worker was a labourer in a small business conducted by the employer on his private property. The worker had been with him for several years and had worked “closely” with the employer, who described him as “part of the family.” The worker was also familiar with his employer’s various pets, including their dogs and beloved bird, “Crackers.”
One afternoon, when the worker was nearly finished for the day, one of his final tasks was to move a truck. He was about to do so when he noticed Crackers sitting on the ground. According to records, it was “common practice” to move the bird or any other of the employer’s pets that may be around the worksite to “keep them safe.”
The worker set about moving Crackers to a safer place but did not want to pick the bird up because it tried to bite him in the past. He made a few attempts at moving the bird, like using a mop and a wooden broom.
After several attempts, Crackers then ran under another truck parked nearby. The worker then “assumed” the bird was “content beneath the parked vehicle” and thought it would stay there “long enough for him to move the other truck.”
Believing it was safe, the worker got in the truck he intended to park. He checked each of his mirrors and the reversing camera, and when he could see no obstructions, he began to roll slowly down the driveway.
Unfortunately, despite his checks, the worker 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 worker drove the truck into the shed and parked it. A few moments later, he walked out and noticed Crackers on the ground. He immediately went to get his employer.
The employer then told the worker that he must have run over the bird. “Stunned” about the incident, the only word the worker could get out was “sorry.” The employer said, “It’s okay, don’t worry about it,” before walking away with Crackers in his hands. The worker collected his things and left for the day.
After a few days, the employer then decided to review the CCTV footage of the incident. He was “upset” when he realised that the worker had known that Crackers was in the vicinity of the vehicles. When the worker arrived a short time later, the employer immediately told him that he could not believe the worker had not looked behind him when reversing the truck.
The worker insisted that he checked but had not seen the bird. The employer then 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.”
The employer said he was terminating his employment “effective immediately, for negligence” and handed him a letter to confirm. The worker 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 worker filed an unfair dismissal claim before the FWC but the employer argued that there was a “directive in place,” saying it had been “repeated on multiple occasions.” The employer said he always reminded the worker that a vehicle or plant should not be operated when the bird was in the vicinity, not unless there was “direct visual contact” that the bird was safe.
The worker rejected the idea that “such a direction had ever been given.” The worker said the employer would sometimes say, “Watch out for Crackers,” but said there were no established instructions about how to move the bird.
The FWC said it “sympathises” with the employer and his family, saying they “obviously cared deeply for this bird,” but said the worker’s conduct was not malicious nor deliberate. It said it was not a “valid reason” for his dismissal, saying that “at its highest, the actions of the young [worker] may have warranted a written warning, but no more.”
The FWC also noted that the worker was not “afforded an opportunity” to provide a more detailed response against his dismissal, highlighting the worker’s “relatively young age and inexperience.”
“The [worker’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,” the FWC’s decision said. Ultimately, it ruled that the worker was unfairly dismissed.
Meanwhile, Michael Byrnes, an employment lawyer and partner at Swaab, says Cracker’s “legacy” imparts a “fundamental lesson” to employers in considering a worker’s dismissal — that is, to “avoid emotion.”
“All steps taken in the decision to terminate employment should be made fairly and objectively. The reason for dismissal should be based on a robust and thorough analysis of the available evidence,” Byrnes said in a Swaab media release.
“While an emotional response is sometimes entirely understandable given events (such as the sad loss of a beloved pet), it can militate against the clear, clinical approach that should be brought to decisions to terminate employment,” Byrnes added.
