Earlier this month, the commission ruled that the dismissal of Scott Tracey by BP Refinery (Kwinana) Pty Ltd “was not harsh, unjust or unreasonable”.
Mr Tracey had worked as an operations technician at BP’s Kwinana refinery in Western Australia at the time of his termination. The Fair Work Commission (FWC) noted that he began working with the company in January 2012 as a process technician, following an initial employment contract from the previous October.
At the time his employment with BP ended, he was covered by the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014.
By around June 2017, BP and the union began negotiating a new enterprise agreement, but the FWC said that “as the negotiations dragged on without resolution, the industrial environment became increasingly tense”, before the parties turned to the commission to facilitate negotiations.
The negotiations broke down, the FWC said, leading to industrial action in January of this year.
Did Nazi meme represent actual individuals?
According to the FWC, Mr Tracey’s wife stated during proceedings that she had created a video, titled “Hitler Parody EA Negotiations” via Caption Website, around 3 September 2018, using an extract from the German film Downfall.
“In the extract, Hitler responds in a highly agitated and aggressive manner to advice from his generals that his regime has lost the Second World War,” the FWC said in its verdict.
“The captions added to the Hitler video make reference to events associated with the EBA negotiations.”
She had told the commission that the video was not intended to depict any particular individual, and Mr Tracey had said the it was meant to simply be a funny parody about the enterprise bargaining negotiations.
However, BP took a different view, suggesting that Hitler’s character was associated with comments made by BP Refinery’s manager during the negotiations, and that the video “draws a parallel” between Hitler and his officers and the refinery’s management.
The video was subsequently posted to a private Facebook group, members of which Mr Tracey told the FWC were employees of the refinery, and that the video was seen by other employees both on a BP computer and through Mr Tracey showing it to colleagues on his personal device.
Company investigation results in dismissal
On learning about the video, BP began an internal investigation, and interviewed Mr Tracey about the video on 31 October 2018.
The FWC said that Mr Tracey admitted to sharing the video, but refused to identify who had created it.
Following the interview, Mr Tracey was stood down on full pay while the investigation was completed, by way of a letter outlining the allegations against him and that, if substantiated, it may seek to terminate his employment for breaching company policies.
The investigation ultimately found that Mr Tracey had breached company policy by sharing material that other employees of the company deemed offensive, and his employment was terminated on 18 January 2019, with four weeks’ pay in lieu of notice.
Was the dismissal unfair?
According to the FWC, a termination of employment is deemed to be unfair if it is deemed to be “harsh, unjust or unreasonable”, and that the employer must have a “sound, defensible and well-founded” reason for doing so.
There was debate about whether it was Mr Tracey, as BP’s employee, or his wife who had created the video, with BP contesting that Mr Tracey was involved at the very least by providing his wife with information about the negotiations that was included in the video.
The commission agreed with BP, ruling that Mr Tracey “was involved in the ‘creation’ of the Hitler video and that his contribution was significantly more extensive tha[n] his, or Mrs Tracey’s, evidence suggested”.
It also said that Mr Tracey’s actions in sharing the content should be factored into the determination.
Ultimately, the commission ruled that “when viewed in context that a reasonable person would consider the Hitler video inappropriate and offensive”, and that its creation and distribution with fellow employees breached the company’s policy requirements for employers to “treat everyone with respect”, to “be respectful of cultural difference” and when against the provision stating that “offensive messages, derogatory remarks and inappropriate jokes are never acceptable”.
Additionally, the FWC said that “showing his colleague the Hitler video using the BP IT system constituted both accessing and sharing the Hitler video for the purposes of the relevant policy”.
Worker ‘sacked because of cultural misunderstanding’, union claims
In a press statement issued in the days after the FWC verdict was handed down, national secretary of the Australian Workers’ Union (AWU), Daniel Walton, suggested the ruling was a mistake and that an appeal would likely follow.
“‘Hitler Downfall’ videos are a joke, but the decision to sack a worker over one is not,” he said.
“This is a long-serving, loyal employee who has lost his job because the Fair Work Commission is seemingly unfamiliar with a meme that’s over a decade old.
“As anyone with a smartphone and a sense of humour can tell you, Hitler Downfall parody videos are not about comparing anyone to actual Nazis. It’s about depicting a high-stress group conflict situation and overlaying details about a current event. Like most people, I’ve seen versions of these meme about sport, politics, reality TV — it’s very well established.”
Mr Walton said that he could “understand” a comparison could be drawn by someone unfamiliar with the meme, but insisted that comparing people to Nazis is “just not what this video means in 2019”.
“So this is a worker who has been sacked because of a cultural misunderstanding. It’s ludicrous,” he said.
“If you said ‘bugger’ in front of your boss on a worksite, they would likely not bat an eyelid. But if they’d never heard the term before and they looked up the literal meaning, they might be appalled. Yet you shouldn’t be sacked over such a misunderstanding.”
A BP spokesperson subsequently said that “we do not comment on individual cases [but]we can say that our expectations around our people’s values and behaviours are consistent across the company, including offices, refineries, and retail.”
Social media an increasingly common source of employment tension
Far from being an isolated example, social media has become a common cause of tension in the workplace, with several high-profile cases dominating headlines this year alone.
Even employment lawyers differ in their views of where the boundaries lie when it comes to social media usage.
Some advocating employers develop and actively communicate strict policies and protocols around employees’ use of social media in a bid to both set expectations of employee conduct and protect themselves should disciplinary action be taken. Others, however, have claimed that employers have no right to encroach on the personal lives of employees and their actions that take place outside of the workplace, claiming that, by doing so, employers are “controlling workers’ lives”.
Last month, the High Court ruled that the sacking of a public servant was “not unlawful” after expressing political comments on social media that were critical of her employer, setting a separate precedent that workers can have their employment terminated for what they say on social media.
One of the barristers involved in that case said the ruling presented a number of key takeaways on employee dismissal and freedom of expression.
Meanwhile, the high-profile legal case between Rugby Australia and Israel Folau is still ongoing, after the rugby player had his contract terminated for controversial remarks he had made on social media.