Hitler parody video results in reinstatement and $190,000 payment

On 18 January 2019, BP Refinery (Kwinana) Pty Ltd (BP) terminated Mr Scott Tracey’s employment on the grounds of misconduct for helping create a Hitler parody video with his wife which depicted his senior managers as Nazis. The video drew a parallel between Hitler and his officers, on the one hand, and the employer and its workers during protracted enterprise bargaining negotiations, on the other. Mr Tracey then shared the video with his work colleagues on a social media group, in the workplace on the employer’s computer and also from his private mobile device.

Mr Tracey filed an unfair dismissal application in the Fair Work Commission (FWC) which was dismissed in 2019. However, on appeal the Full Bench of the FWC (Full Bench) overturned the FWC’s initial decision, held that Mr Tracey’s dismissal was unfair and ordered BP to reinstate Mr Tracey.[1]

On 10 August 2020, the Full Bench handed down the decision of Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206 which dealt with the issue of how much compensation Mr Tracey was entitled to for the remuneration he lost because of the dismissal in accordance with the provisions of the Fair Work Act 2009 (Cth) (FW Act).

Decision on appeal

The FWC’s initial decision was overturned by the Full Bench and Mr Tracey’s dismissal was found to be unfair for the following reasons:

• it was not reasonably open for the FWC to characterise the parody video in the manner it did (as inappropriate and offensive) because it “does not liken BP management to Hitler or Nazis in the sense of stating or suggesting that their conduct or behaviour was in some sense comparable in their inhumanity or criminality”. Rather, the Full Bench held that the parody video compared, 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;
• given the context of the enterprise bargaining dispute at the time which was heated and protracted, it was understandable that persons in the ‘opposing camps’ might between themselves engage in criticism of the other party’s position and conduct – there were significant economic impacts at stake for BP and its employees;
• there was therefore no valid reason for dismissal;
• although Mr Tracey used a work computer to distribute the parody video to one employee during work hours, such conduct was not sufficiently grave to justify dismissal;
• Mr Tracey had an unblemished employment record for over 7 years at BP; and
• Mr Tracey expressed contrition for his conduct, and took the link down from the Facebook page as soon as he became aware it had come to BP’s attention.

Reinstatement was ordered by the Full Bench because it was satisfied that Mr Tracey’s record of employment suggested that he would have no difficulty in re-establishing himself as a productive and cooperative member of the workforce at the BP Kwinana refinery.

Full Bench’s determination regarding compensation

Pursuant to section 391 of the FW Act, if the FWC makes an order for reinstatement and considers it appropriate to do so, it may also order that the employer pay to the employee an amount for the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

In relation to the quantum of compensation to award Mr Tracey, the Full Bench took into account the following matters in accordance with section 391 of the FW Act:

• the amount of any remuneration earned by Mr Tracey from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
• the amount of remuneration reasonably likely to be so earned by Mr Tracey during the period between the making of the order for reinstatement and the actual reinstatement.

The Full Bench awarded Mr Tracey $177,324.93 on account of lost salary and bonus in addition to $24,069.99 on account of lost superannuation. While Mr Tracey may have been entitled to a promotion to a higher classification level and greater bonus had he remained an employee of BP, the Full Bench calculated the above amounts bearing in mind that BP would have taken reasonable disciplinary steps for the misconduct Mr Tracey was found to have engaged in – breaching BP’s policy by using a work computer to show the parody video to another employee during work hours.

Take home messages

The FWC has previously considered cases in which an employee has made references, or likened their employer, to Hitler or the Nazi regime. Generally, such references were deemed inappropriate and offensive which warranted the termination of employment. However, the Full Bench’s decision on appeal in respect of Mr Tracey’s unfair dismissal application indicates that the intent and context in which such references are made are relevant factors in determining whether the references are inappropriate or offensive.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.

[1] Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820.