BP has launched Federal Court action in a bid to overturn the Fair Work Commission’s controversial decision (see related story) to reinstate an oil and gas technician who was sacked over a Hitler parody video.
The employee 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.
On appeal, the Full Bench of the Fair Work Commission overturned the original September 2019 ruling by Deputy President Binet who found the video “caused offence to others”, was “inappropriate” and breached company policies.
The Full Bench found the dismissal was unjust and unreasonable because there no valid reason and harsh because of mitigating factors, finding Deputy President Binet wrongly characterised the video.
“Anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving Hitler or Nazis,” it said.
The full bench ordered for the employee to be reinstated and BP compensate him for lost earnings.
BP has since filed an appeal seeking to have the Commission’s ruling overturned.
A BP spokeswoman told The Australian on Wednesday that “after careful consideration”. the company was appealing the full bench decision, saying the company had “worked incredibly hard over many years to create a work environment that is based on strong values and behaviours”.
“We have clear expectations for how we work at BP and this applies to all staff, every day. If those expectations are not met, we take appropriate action,” the spokeswoman said.
AREEA 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, AREEA supports Deputy President Binet not substituting her own decision for that of BP management. AREEA’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 AREEA’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”.
AREEA’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 AREEA’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.
AREEA 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 AREEA’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].
