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