A Full Bench of the Fair Work Commission (FWC) has reinstated an oil and gas technician who was dismissed from his job in 2019 for creating and distributing a parody video comparing the employer’s enterprise bargaining position to that facing Hitler and his henchmen at the end of World War 2.

Background

The incident involved a BP Kwinana Refinery employee who, in September 2018, created the video using scenes from the German-language film Downfall, adding subtitles which referenced details known to those participating in negotiations for the refinery’s new agreement.

The employee then posted the video to a private Facebook page comprising employees engaged in enterprise bargaining with their employer. He also shared it with colleagues using the work computer of another employee and showing it on his personal device.

BP management became aware of the video and commenced an investigation alleging the worker was involved in the creation and sharing of an “offensive and inappropriate” video amongst the workforce in breach of company policies.

BP’s investigation found the worker was involved in creating and making available the offensive and inappropriate video which purportedly depicted BP representatives involved in bargaining negotiations as Nazis. BP established the employee’s conduct breached its Code of Conduct and Respect and Equal Opportunities and Protecting our Information policies.

The employee was dismissed in January 2019 and made an application to the FWC for an unfair dismissal remedy.

Original decision finds video ‘offensive and inappropriate’

In September 2019, the employee’s dismissal was upheld by Deputy President Binet who found the video “caused offence to others”, was “inappropriate” and breached company policies.

Deputy President Binet found the worker was involved in creating the video (despite his claim his wife was the one who created it) and in any event, he made it available, shared and/or distributed it as alleged by BP.

Despite the video being posted to a private Facebook group with restricted access, the Deputy President noted those with access “were familiar with the negotiations and the identities of those involved and could easily draw parallels between the words attributed to Hitler and the Nazi generals via the captions and events which occurred during the negotiations”.

Further she said: “the very identity of that audience made the sharing and distribution of more significance than a larger audience with no relationship to the BP worksite.”

Deputy President Binet then gave consideration as to whether a reasonable person would consider the video to be offensive or inappropriate. She said she did not accept “that by labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive”.

In considering whether the employee’s conduct breached BP’s policies, employees are “required to treat everyone with respect” and that “offensive messages, derogatory remarks and inappropriate jokes are never acceptable”. Deputy President Binet found “the video had the potential to undermine, demean and denigrate the BP senior management team amongst an audience which they were charged to lead” and was therefore inappropriate given the circumstances.

The employee took no responsibility for offence being taken by any individual and argued that he did not share it with people who claimed to be offended by it, rather that it was publicly accessible on the website used to create the video. Deputy President Binet rejected the employee’s argument saying “that [the employee] did not share or distribute the video directly with those offended does not exculpate him”.

Further, she drew a parallel “with explicit posters in crib rooms which can have a harassing and intimidatory effect on women employed in roles elsewhere in the business and notwithstanding they may not be members of the workgroups using the crib rooms on a day to day basis”.

Deputy President Binet was satisfied that the employee “made available, shared and or distributed the Hitler Video…[and] in doing so he breached BP policies and that his conduct was destructive of the necessary trust and confidence that are an essential element of any employment relationship”.

She found this constituted a valid reason for dismissal.

Full Bench takes an opposing view

On appeal the Full Bench, comprising Vice Presidents Hatcher and Catanzariti and Commissioner Booth, found in the context of the Downfall scenes being used elsewhere in pop culture to satirically depict “contemporary situations” gone wrong, the making and distributing of the video did not constitute a valid reason for the employee’s dismissal.

The Full Bench disagreed with the Deputy President’s characterisation that the video likened BP management to Hitler or Nazis and as such was offensive and inappropriate. The Full Bench said it “does not accept that it was reasonably open for the video to be characterised in the way it was by the Deputy President”.

The Full Bench found this position was made even clearer when considering the context in which the Downfall clip was being used in social media. The Full Bench noted “the clip has been used thousands of times over a period of more than a decade for the purpose of creating, in an entirely imitative way, a satirical depiction of contemporary situations”.

Further, the Full Bench found there was “no doubt that the clip would be understood by the reasonable viewer as satirising BP’s conduct during the enterprise agreement bargaining process at the Kwinana Refinery. That, by itself, did not make it offensive or inappropriate”.

The Full Bench also considered the industrial circumstances at the time, noting “it is entirely understandable that persons in the opposing camps might between themselves engage in criticism of the other party’s position and conduct”.

“It is important in this context to distinguish between criticism of the other party’s position and conduct during an industrial dispute and targeted personal disparagement of an individual in the other camp. The video clip certainly engages in the former activity through the use of satire, but the evidence did not establish that it involves the latter,” the Full Bench said.

It was for those reasons that the Full Bench found it was not reasonably open to the Deputy President to find there was a valid reason for dismissal. The Full Bench then considered it appropriate to redetermine the employee’s application for unfair dismissal remedy itself.

The Full Bench found there was no valid reason for dismissal as it did not consider the video to be offensive or inappropriate in the circumstances. It took into account the employee’s unblemished work history, the industrial environment in which the conduct occurred, the employee’s contrition and the significant financial hardship on the employee’s family.

For these reasons the Full Bench overturned Deputy President Binet’s September 2019 decision finding the dismissal was unjust and unreasonable because there no valid reason and harsh because of the mitigating factors.

In determining the remedy for the unfair dismissal, the Full Bench considered the working relationship between the employee and the managers who perceived themselves as being the subject of criticism in the video. The Full Bench found the daily interactions between the employee and managers would be limited and given the employee’s prior record he will easily re-establish himself as a productive and cooperative member of the workforce.

The Full Bench found that reinstatement would be the most effective remedy for the unfair dismissal.  It made an order that BP reinstate the worker within 14 days and further determine compensation for remuneration lost during the period of unemployment.

AMMA Position

While the novel nature of this matter has captured wide public attention, at its core this Full Bench decision is just another example of the FWC overturning an employer’s seemingly legitimate managerial action to dismiss an employee for what it considers a significant policy breach.

Employers do not make the decision to dismiss an employee lightly. BP had come to its conclusion that dismissal was the most appropriate action only after a thorough and procedurally fair investigation had been conducted and found other BP employees were offended by the video.

In these circumstances, AMMA supports Deputy President Binet not substituting her own decision for that of BP management.  AMMA’s longstanding position is that where a business has made the decision to terminate an individual’s employment based on the facts and circumstances at hand, that decision should stand.

One of AMMA’s workplace reform priorities identified in its Pathway to Productivity campaign calls on the Australian Government to restore the balance to unfair dismissal laws.

Outcomes similar to this one have become commonplace under the Fair Work laws.

More and more employees who have been dismissed for misconduct and behaviour which falls short of expected standards are being reinstated and even awarded compensation by the FWC, which commonly seeks to substitute its judgements, values and decisions for those made by experienced human resources and business managers.

In many cases the FWC has even found there was a valid reason for termination, but for a myriad of other factors, the decision of the employer was deemed “harsh”.

AMMA’s policy is that there should be no question of reinstatement where an employee is terminated for serious misconduct. The unfair dismissal laws should provide that where an employer has conducted a full, proper and fair investigation and found that a valid reason for termination exists, the termination should stand.

On a separate note, this decision supports AMMA’s recent analysis of FWC Full Bench determinations that a ‘gang of four’ continues to preside over the most significant decisions coming out of the tribunal.

This matter has seen a Full Bench comprising of all ALP-appointed tribunal members, including two of the ‘gang of four’ (Hatcher and Catanzariti) who control 87% of all Full Bench matters, overturning a reasonable decision of a Coalition appointee to support the employer’s management in the face of Hitler comparisons.

AMMA notes that when appointed to the FWC in 2015, Deputy President Binet brought significant experience across contemporary industrial relations and employment law matters, both domestically and internationally, to the tribunal.

This case further justifies AMMA’s call for the Australian Government to consider a full-scale review of the FWC to examine its resources and public funding could support positive workplace outcomes to the benefit of the Australian economy and wider community.

For comments, questions or more information on any of the themes covered in this case, contact [email protected].