Impor­tant Unfair Dis­missal Lessons: The Lega­cy of Crack­ers the Galah

The recent unfair dis­missal deci­sions of the Fair Work Com­mis­sion in Blake O’Ke­effe v The Trustee For Dun­shea Fam­i­ly Trust [2022] FWC 74 and [2022] FWC 298 have attract­ed much media atten­tion due to the facts of the case, which relate to the unfor­tu­nate demise of a much loved fam­i­ly pet, Crack­ers the galah.

While the unusu­al cir­cum­stances of the case, which bring to mind Mon­ty Python’s leg­endary Dead Par­rott sketch, give rise to both mirth and sym­pa­thy, the case nev­er­the­less has some impor­tant lessons for employ­ers to consider. 


The Respon­dent was a small busi­ness run by Mr Dun­shea on his pri­vate prop­er­ty. The Appli­cant had worked for the Respon­dent for sev­en years, ini­tial­ly as a casu­al and then as a full-time employ­ee. He was described as part of the fam­i­ly” by Mr Dun­shea and famil­iar with the var­i­ous pets on the prop­er­ty, includ­ing Crack­ers, a galah. There had been no issues with the per­for­mance or con­duct of the Appli­cant up to the inci­dent that result­ed in the ter­mi­na­tion of his employment.

That inci­dent occurred on 6 August 2021. The Appli­cant had to move a truck, which involved revers­ing the vehi­cle. As he was about to do so he was con­cerned about the posi­tion of Crack­ers, who was sit­ting on the ground. Pets on the prop­er­ty were com­mon­ly moved to keep them safe while work was being per­formed. Because he was con­cerned about being bit­ten (as had hap­pened pre­vi­ous­ly), the Appli­cant used both a mop (with alu­mini­um han­dle) and wood­en broom in his var­i­ous attempts to coerce Crack­ers to move. Those efforts were to no avail and instead had the unfor­tu­nate effect of mov­ing Crack­ers fur­ther under the vehicle. 

The Appli­cant assumed that Crack­ers was con­tent to remain under the vehi­cle, so he went to the truck and reversed it, check­ing for obstruc­tions (using mir­rors and the revers­ing cam­era). Trag­i­cal­ly, Crack­ers moved and was squashed by one of the wheels of the revers­ing vehi­cle. The Appli­cant did not wit­ness this notwith­stand­ing the checks he made. 

After park­ing, the Appli­cant noticed Crack­ers, who looked ful­ly inflat­ed” and was not mov­ing. He called Mr Dun­shea who attend­ed and picked up a crum­pled Crack­ers. It was then the Appli­cant realised the cause of death was the vehi­cle he had reversed and, in his stunned state, could only offer the word sor­ry” before Mr Dun­shea said, It’s ok, don’t wor­ry about it”.

The inci­dent was cap­tured on CCTV footage. Mr Dun­shea reviewed that footage on the fol­low­ing Mon­day morn­ing. Mr Dun­shea was par­tic­u­lar­ly upset that the Appli­cant knew Crack­ers was in the vicin­i­ty of the vehi­cle. There was then an exchange between the Appli­cant and Mr Dun­shea, in which Mr Dun­shea chal­lenged the Appli­cant as to why he had not checked while revers­ing and the Appli­cant respond­ed that he had done so. Mr Dun­shea then said, 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 then noti­fied the Appli­cant he was ter­mi­nat­ing his employ­ment sum­mar­i­ly for neg­li­gence and pro­vid­ed him a let­ter to the effect. 

The facts above were large­ly not dis­put­ed by either par­ty but there was a con­test­ed fact: Mr Dun­shea claimed he had pre­vi­ous­ly giv­en a pre­scrip­tive direc­tion to the Appli­cant, specif­i­cal­ly 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 said this was­n’t the case, that Mr Dun­shea oper­at­ed in an infor­mal way and occa­sion­al­ly said, Watch out for Crack­ers”, but noth­ing else. 

The Out­come

The dis­missal, which was cov­ered by the Small Busi­ness Fair Dis­missal Code (giv­en the Respon­dent employed less than 15 employ­ees), was found to be unfair. 

First, cru­cial­ly, there was no valid rea­son for ter­mi­na­tion. At para­graph 31 of the judg­ment, Deputy Pres­i­dent Lake held:

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.”

His Hon­our also reject­ed the con­tention of the Respon­dent that a for­mal direc­tion has been giv­en about the safe­ty of the pets but did find there was an under­stand­ing that the Appli­cant would take rea­son­able care, which it was held the Appli­cant did. 

Deputy Pres­i­dent Lake pro­ceed­ed to observe (at para­graph 33):

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 Com­mis­sion also held that the Appli­cant was denied pro­ce­dur­al fair­ness. Deputy Pres­i­dent Lake observed: (at para­graph 34):

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.”

In the sec­ond deci­sion, which con­sid­ered the appro­pri­ate rem­e­dy con­se­quent upon the find­ing in the first deci­sion the dis­missal was unfair, Deputy Pres­i­dent Lake held that rein­state­ment was no longer pos­si­ble giv­en the sig­nif­i­cant and per­ma­nent frac­tur­ing of the work­ing rela­tion­ship between the Appli­cant and Mr Dun­shea, and ordered com­pen­sa­tion be paid by the Respon­dent instead. 

The Lessons

The case, as unusu­al as its facts are, nev­er­the­less pro­vides lessons for employ­ers when con­sid­er­ing whether to dis­miss an employee:

  1. Avoid emo­tion – This is the key, fun­da­men­tal les­son that emerges from this case. 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. There should be a fair process, giv­ing the employ­ee a prop­er oppor­tu­ni­ty to respond, with that response ful­ly con­sid­ered. The dis­ci­pli­nary action tak­en should be pro­por­tion­ate – ter­mi­na­tion of employ­ment is gen­er­al­ly a last resort and needs to be jus­ti­fied hav­ing regard to the cir­cum­stances. 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.
  2. Con­sid­er inde­pen­dent inves­ti­ga­tions Where it is prac­ti­cal to do so, one way to take the emo­tion out of the fact-find­ing process is to use a prop­er­ly qual­i­fied, expe­ri­enced work­place inves­ti­ga­tor. That inves­ti­ga­tor can bring the inde­pen­dence and objec­tiv­i­ty to the fact-find­ing process that can some­times be lost when the evi­dence is being mar­shalled and con­sid­ered by some­one who is emo­tion­al­ly invest­ed in the rel­e­vant events.
  3. Offer a fair hear­ing – Again, while the turn of events might mean the deci­sion mak­er is not inter­est­ed in hear­ing from the employ­ee, it is imper­a­tive they be giv­en an oppor­tu­ni­ty to respond to alle­ga­tions of misconduct.
  4. Pro­por­tion­al­i­ty – The dis­ci­pli­nary out­come needs to be pro­por­tion­ate to the con­duct. In this case Deputy Pres­i­dent Lake was of the view a warn­ing might have been appro­pri­ate, not ter­mi­na­tion of employ­ment. When anger or dis­tress informs the deci­sion to ter­mi­nate employ­ment, it might lead to an out­come that is dif­fi­cult to defend if chal­lenged before the Fair Work Commission.
  5. The Small Busi­ness Fair Dis­missal Code is (almost) a Dead Let­ter – While the Com­mis­sion needs to con­sid­er the oper­a­tion of the Code in deter­min­ing whether a dis­missal by a small busi­ness” (less than 15 employ­ees) is unfair, and it offers some help­ful guid­ance as to the process to fol­low, it rarely alters the fun­da­men­tal require­ments of a fair dis­missal such as to lead to a dif­fer­ent out­come. The deter­mi­na­tion of whether a dis­missal is fair often rests on con­sid­er­a­tions that do not lend them­selves to a sim­ple check­list. The reduc­tive solu­tion to fair dis­missals implied by the Code is illusory.