At Worklogic, we have been following with interest BP’s bumpy journey through the Fair Work Commission and the Federal Court, in what has ultimately been an unsuccessful attempt to dismiss one of its employees for making and posting a video which appeared to paint BP management as Hitler and his cronies in the final days in the bunker in Berlin .
The case is in the long tradition of dismissals for ‘out of hours misconduct’; in other words out of hours conduct by an employee, on matters that do not directly affect work performance, which leads them to be dismissed for breach of an employer’s policies. The defining character of such dismissals is summarised in the case of Rose v Telstra as one of the following kinds:
- The conduct is likely to cause serious damage to the relationship between the employee and employer; or
- The conduct damages the employer’s interests; or
- The conduct is incompatible with the employee’s duty as an employee.
While for some years it has seemed as if employees have increasingly been able to dismiss employees for ‘blowing off steam’ at their bosses (either on social media or, further back, in the local pub), this case suggests that there may now be limits to this.
Mr Tracey worked as an Operations Technician at the BP Kwinana Oil Refinery in Western Australia. Towards the end a heavily contested Enterprise Agreement negotiation, he and his wife created a video depicted BP representatives involved in the negotiations as Nazis. The video was aptly named ‘Hitler Parody EA Negotiations’, and comprises an extract from the film Downfall in which Hitler acts in a highly agitated and aggressive manner when advised by his Generals that his regime has lost the Second World War. The captions added to the video make reference to events associated with the negotiations. As will become important later in the court process, the extract has become a ‘meme’ in the years since the film’s release in 2004.
But how did BP become aware of the video?
On 3 September 2018, Mr Tracey posted a link to the video on a private social media ‘page’, only its members comprised employees at the Kwinana Refinery. In this sense, the video was said to be designed to ‘blow off steam’.
BP became aware of the video because later that day, Mr Tracey showed the video to other BP employees working nightshift on a BP computer.
Management undertook a rigorous investigation and disciplinary process at the end of which it was found that Mr Tracey had breached the BP Code of Conduct, Values and Behaviours, BP Respect & Equal Opportunity Policy.
The BP Values and Behaviours (in relation to Respect) states that: “We hold ourselves to the highest ethical standards and behave in ways that earn the trust of others. We depend on the relationships we have and respect each other and those we work with.”
Section 2 of the Code relevantly requires BP employees to “treat everyone with respect” and “be respectful of cultural differences”; and states that “offensive messages, derogatory remarks and inappropriate jokes are never acceptable“.
BP management found that, viewed objectively, the contents of the video were ‘offensive and inappropriate’ as it creates a parallel between Hitler and Nazi officers on the one hand and members of the management team on the other. Therefore, Mr Tracey had breached BP policies and his conduct was destructive of the necessary trust and confidence that are an essential element of the employment relationship 
Mr Tracey was dismissed on 18 January 2019 with immediate effect and paid four weeks salary in lieu of notice.
Fair Work Commission
On 4 February 2019, Mr Tracey filed an application for unfair dismissal in the Fair Work Commission. Deputy President Binet heard the application in September 2019: Scott Tracey v BP Refinery (Kwinana) Pty Ltd  FWC 4113 (2 September 2019) and found that, when viewed in context, “a reasonable person would consider the Hitler video inappropriate and offensive”. Agreeing with BP’s contention that it depicted senior managers as Nazis, Deputy President Binet said she did not accept that “labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive“.
Mr Tracey appealed to the Full Bench of the FWC. On 28 February, Vice Presidents Adam Hatcher and Joe Catanzariti and Commissioner Susan Booth overturned the original decision and ordered BP to reinstate the technician: Scott Tracey v BP Refinery (Kwinana) Pty Ltd  FWCFB 820 (28 February 2020).
They found that the video did not in fact compare BP management to the likes of Goebbels, Himmler, and Hitler. Rather:
“What it does do is to compare, for satirical purposes, the position BP had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945.
The Full Bench continues:
“…furthermore… 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 has had the result of culturally dissociating it from the import of the historical events portrayed in the film, and therefore the video could not be taken to associate Hitler and his colleagues with the BP representatives.”
It was also important, the full bench said, given the 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“, which had not occurred here. As a result of this, Mr Tracey had not breached the BP Code of Conduct or Policy.
BP appealed to the Federal Court. In May this year, the Full Court held that the decision of the Full Bench of the FWC was not a mere “difference of opinion” with the original decision of DP Binet, but that it was not reasonably open to DP Binet to find the video to be a breach of the Code of Conduct: BP Refinery (Kwinana) Pty Ltd v Tracey  FCAFC 89 (22 May 2020).
The matter was then remitted for the Full Bench of the FWC to calculate compensation to be paid to Mr Tracey. Concerningly for employers, on 10 August Vice presidents Hatcher and Catanzariti and Commissioner Booth gave BP a fortnight to reinstate a dismissed employee and pay $201,390.00 in lost wages and superannuation.
Take home lessons for employers
A fascinating case, perhaps more entertaining for employees than employers. So where does this leave employers like BP in future?
- The current situation in Australian workplaces is now arguably that an employee can engage in some satire of his or her employer, provided it is not unreasonably offensive and in particular does not ‘get personal’ and take aim at individual management.
- Although this did not occur in this case, both the FWC and the full bench of the Federal Court supported the proposition that a breach of a Code of Conduct, even one which is generally worded, could potentially be the basis for a valid dismissal.
- The cultural context of the criticisms, joke or satire is obviously critical. In recent years different contexts have led to dismissals being upheld (e.g. a reference to Anzac Day in the case of Scott McIntyre and SBS).
 Scott Tracey v BP Refinery (Kwinana) Pty Ltd  FWC 4113 (2 September 2019); Scott Tracey v BP Refinery (Kwinana) Pty Ltd  FWCFB 820 (28 February 2020); BP Refinery (Kwinana) Pty Ltd v Tracey  FCAFC 89 (22 May 2020); Scott Tracey v BP Refinery (Kwinana) Pty Ltd  FWCFB 4206 (10 August 2020)].
 Interestingly, calling your employer a Nazi has a historically led to a number of valid dismissals: APS Group (Placements) Pty Ltd v O’Loughlin  FWAFB 5230; CPSU v Australian Broadcasting Corporation  AIRC 737 SDP; Pitt v Woolworths (SA) Pty Ltd  AIRC 673].