Can you be sacked for running over your bosses pet?

Its more common than allot of employees think, where employees, particularly in small business are stuck, forced, coerced into looking after, or baby sitting the employers pet. We constantly get calls on this. Do I have to walk the employers dog? Do I have to clean up after the dog? The employer wants me to look after the dog and cat while they go on holidays. The dogs in the office, its stinks, I didn’t sign up for this, what can I do? Can you be sacked for running over your bosses pet is certainly worth a read, particularly in the procedural fairness of the unfair dismissal.

This decision being analyzed today deals with this. In December 2021, the Fair Work Commission grappled with an interesting unfair dismissal claim – can your boss dismiss you for running over their pet with your car? In O’Keeffe v The Trustee For Dunshea Family Trust,[1] Mr Blake O’Keefe (the Applicant) was terminated from his employment after seven years of dedicated and loyal service for running over his bosses’ pet galah, Crackers. Hence the article of Can you be sacked for running over your bosses’ pet?

Facts of Crackers getting run over

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.

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.

Reported to the employer straight away

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 realized 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.

Terminated effective immediately

Although Mr Dunshea told the Applicant not to worry, but after reviewing the CCTV footage, the Applicant’s employment was terminated effective immediately, without notice, for the alleged serious misconduct.

The Trustee for Dunshea Family Trust (the Company) is a small business and they argued they had complied with the Small Business Fair Dismissal Code and followed due process such as reviewing the CCTV footage.

Is it serious misconduct? Can you be sacked?

As set out in the Fair work Commission Full Bench’s decision in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services,[2] in assessing whether a company has complied with the Code’s summary dismissal section, the Fair Work Commission 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.[3]

Whether a reasonable investigation was carried out will be a relevant factor in determining if the second element is met.[4]

The Applicant argued 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, the Applicant argued it was not serious misconduct.

In determining whether the Applicant was unfairly dismissed, Deputy President Lake of the Fair Work Commission needed to consider first whether there was a valid reason under s 387 of the Fair Work Act 2009 (Cth).

Dismissal should be sound, defensible or well founded

To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced”.[6] 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.[7] 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.[8]

Deputy President Lake of the Fair Work Commission held that whilst he had sympathy for Mr Dunshea and his family, who obviously cared deeply for this bird, the Applicant’s conduct was not malicious or deliberate.[9] It did not constitute valid reason for his dismissal. Deputy Preside Lake noted that at its highest, the actions of the Applicant may have warranted a written warning, but no more.[10]

Reasonable opportunity to respond

In addition, Deputy President Lake concluded that whilst 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.[11] 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. Consequently, the Applicant was not afforded any procedural fairness as there was no disciplinary action. 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.

In conclusion to Can you be sacked for running over your bosses’ pet?

Can you be sacked? Deputy President Lake held that given the circumstances, the Applicant running over and killing Mr Dunshea’s beloved pet. Was not a valid reason for dismissal and given the procedural deficiencies, the Applicant’s dismissal was harsh, unjust and unreasonable. The Applicant was unfairly dismissed. I respect the Fair work Commissions decision. However on another level, what the FWC, is saying is you can run over the bosses beloved pet, keep your job and no consequences. I’m not convinced this is justice either. Neither side really hadn’t done anything wrong. Its one of these cases everybody’s got an opinion.

I hope this article “Can you be sacked for running over your bosses’ pet?” was informative, we are A Whole New Approach P/l, leaders in workplace advice, commentary and research. Your always welcome to call us and discuss your issue. We are not lawyers. We are industry specialist, with 20 plus years experience. Gary Pinchen has over 200 published decisions in various forms from tribunals across the country.

All Fair work Australia matters, workplace investigations, forced resignations, adverse action, sacking, workers rights, probation period concerns. Call us today, advice is free, prompt and to the point. Call 1800 333 666

Articles similar to Can you be sacked for running over your bosses pet

How much is my unfair dismissal worth,

Got fired while taking sick leave

Sacked 5 unbelievable reasons workers were dismissed

Citations

[1] [2022] FWC 74.

[2] [2015] FWCFB 5264 [41].

[3] Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 [41].

[4] O’Keeffe v The Trustee for Dunshea Family Trust [2022] FWC 74 [18].

[5] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.

[6] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371.

[7] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) [23]-[24].

[8] Bista v Glad Group Pty Ltd [2016] FWC 3009; Turvey v Roverworth Pty Ltd [2021] FWC 4593 [67].

[9] O’Keeffe v The Trustee For Dunshea Family Trust [2022] FWC 74 [33].

[10] Ibid.

[11] O’Keeffe v The Trustee For Dunshea Family Trust [2022] FWC 74 [34].