Hitler video – funny or foul?

The Fair Work Commission considered whether an employee's dismissal for a parody of enterprise bargaining negotiations was an unfair dismissal in Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113.

 

Background

Mr Tracey was a Process Technician employed by BP from 2012 and at the relevant time was covered by an Enterprise Bargaining agreement. Enterprise bargaining negotiations for a new agreement commenced between BP and the Australian Workers Union (AWU) workforce from June 2017. Negotiations broke down despite facilitated bargaining taking place in the FWC, at which time bargaining participants had been party to confidential information.

In September 2018, Mr Tracey's wife allegedly created a video titled "Hitler Parody EA Negotiations", which took footage from a German film recreating the events leading up to Hitler's downfall, and dubbed it with captions reflecting statements made in the bargaining process. Mr Tracey then shared the video on a private Facebook group made up of fellow employees covered by the agreement, and accessed the video on BP's computer systems to show other colleagues whilst at work. BP launched an investigation into the creation and dissemination of the video which resulted in Mr Tracey being stood down on full pay until the investigation was complete.

Just for laughs?

In his response to the allegations, Mr Tracey outlined that the video was meant to be humorous, that it did not specifically identify BP or any individual, that he suffered from a mental illness which impacted his judgement and self-restraint, and that he found the BP Code of Conduct and policies unclear (arguing that the policies were too vague and subjective to be enforceable). Notwithstanding, BP found the allegations against Mr Tracey to have been substantiated and summarily dismissed him on the basis of his breach of BP's Code of Conduct and policies relating to use of BP information.

Mr Tracey argued that he had been unfairly dismissed due to the following:


  • he had not engaged in misconduct in breach of BP's policies;
  • dismissal in light of his personal circumstances was harsh; and
  • the dismissal was unjust as BP failed to follow its own policies and provide clarification regarding the policies.
BP argued that the dismissal was not harsh, unjust or unreasonable on the basis that the video was inappropriate and offensive, which was a breach of its Respect & Equal Opportunities Policy, and that its dissemination on BP's computer system also breached BP's policies. On that basis, and when combined with the fact that the investigation process was procedurally fair, its reasons for terminating Mr Tracey's employment were valid.

The Fair Work Commission's Decision

The Commission held that Mr Tracey had been substantially involved in creating and disseminating the video to individuals familiar enough with the negotiations to "draw parallels" to the enterprise bargaining negotiations. Referencing a range of case law wherein parallels were drawn between individuals in the employment context and Nazis, the Commission held the video to have been offensive to a reasonable person. Having regard to his personal circumstances, the Commission held that given Mr Tracey's unblemished record, they were not satisfied that his mental illness explained his conduct, as it appeared to have been medically managed before the subject incident.

Notably, for employers, Deputy President Binet stated that the evidence indicated that "BP undertook a careful and detailed investigation which provided Mr Tracey with multiple opportunities to respond to the reasons for which he was dismissed and in particular whether the Hitler video was offensive and/or inappropriate."

In respect of the alleged lack of clarity in the Code of Conduct, the Deputy President noted:

"Codes of Conduct are commonly expressed in general terms. Such is the diversity of human behaviour and the variability of circumstance in which such behaviour might occur that it is almost impossible to codify acceptable behaviour in a documentary form that is not impermeably long and detailed. It is unavoidable that application of Codes of Conduct of any sensible length require the exercise of sensible judgement by those who are required to comply with or enforce such Codes. I am not satisfied that the guidance with respect to acceptable behaviour contained in the Code of Conduct was so lacking that it created a gap in instructions capable of resulting in misapprehension or misunderstanding which made Mr Tracey’s dismiss[al] unjust for that reason."

The AWU announced last Friday that it would be seeking leave to appeal the decision to the Full Bench of the Fair Work Commission.1 We will keep you informed if the matter is appealed.

In the meantime, the decision has also sparked a range of similar parody videos critiquing the verdict.

When good humour goes bad – tips for employers

Whilst the decision may be the subject of an appeal, it provides insight into how employers should conduct internal investigations and make findings, including those based on breaches of policies and Codes of Conduct.

Firstly, the decision reaffirmed that the appropriate test in determining whether material is offensive or likely to offend is that of an objective reasonable person. Parody often blurs the distinctions between blatantly offensive material and material made for a purely humorous purpose. However, as Deputy President Binet established, labelling material as a parody is not a "get out of jail free card", likening the situation to racist jokes which "is by name humour but is likely to offend a person of the nationality at which it is aimed". Accordingly, decision makers in investigations need to bear in mind the reasonable person test when determining whether conduct was offensive, and extensively document their reasoning process and any measures they took to uphold impartiality.

Secondly, the case supports the proposition that Codes of Conduct invariably require general wording to encompass all manners of behaviour. That being said, employers should still ensure that their Codes and policies are as unambiguous as possible, while still being broad enough to cover a range of behaviours.

If you would like any help in drafting or reviewing any policies or a Codes of Conduct or need assistance with an investigation or possible termination of employment, please get in contact with McCabe Curwood's experienced Employment group.


1 David Marin-Guzman, 'Downfall Meme Sacking Appealed to Full Bench', The Australian Financial Review (online), 26 September 2019.

Contributors

Samantha Beattie Law Graduate