Employment – Fair Work Act
Scott Tracey v BP Refinery (Kwinana) Pty Ltd  FWCFB 820
This matter concerned an application for unfair dismissal made by a former employee of a BP oil refinery. The dismissal took place in the context of protracted industrial negotiations, which failed to result in agreement over the new enterprise agreement proposed by BP management. In connection with the negotiations, Mr Tracey produced an adaptation of a popular meme using footage from the German-language film ‘Downfall’, in which Hitler is depicted in violent outrage over the state of the war. Subtitles inserted by Mr Tracey satirically portrayed BP management’s failed attempts at industrial negotiations. The film was eventually discovered by BP management who dismissed Mr Tracey because of it.
At first instance, Deputy President Binet, in finding that Mr Tracey’s dismissal was not unfair, considered that the meme drew parallels between particular BP employees and the Nazis and constituted a valid reason for dismissal. The Full Bench of the Fair Work Commission (the FWC), however, overturned Binet DP’s decision, finding rather that the meme was satirical and that it was not open for Binet DP to draw the conclusion.
Subsequently finding the dismissal to be harsh, unjust and unreasonable, the Full Bench made an order for Mr Tracey’s reinstatement and was prepared, in addition, to make an order of compensation for lost wages pending further submissions by the parties on outstanding issues.
Mr Tracey worked as a process technician at BP’s Kwinana oil refinery in Western Australia for 7 years before his dismissal took effect on 18 January 2019. In mid-2017, BP management commenced bargaining to replace the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014 (the 2014 EA). The Australian Workers’ Union (the AWU) represented the refinery’s workforce in the negotiations.
BP eventually took their proposed changes to an employee vote and the changes were emphatically rejected by the employees (98% voting against the proposed changes). In response, BP management made an application to the FWC for termination of the 2014 EA. Termination of the 2014 EA would have meant that the refinery’s employees would not be covered by any enterprise agreement and the employees would have to rely on the lesser protections offered by the applicable award. Tensions escalated leading the workforce take protected industrial action against BP. Eventually the protected industrial action was terminated pursuant to a FWC order obtained by the consent. The dramatic course of events left heightened tensions between the refinery’s employees and BP management.
The enterprise bargaining formed the backdrop to Mr Tracey’s conduct. He posted the video he produced to a Facebook group made up exclusively of BP employees and also showed BP employees the video while at work, using his phone and a work computer on separate occasions. The video eventually came to the attention of BP management, presumably through word of mouth, who accessed it via the website through which it was produced, named ‘Caption Generator’. The video was one of thousands accessible on the website and, to locate it, one would have to know that it was there and access it using the website’s browse function.
Following a workplace investigation by which Mr Tracey was interviewed and given the opportunity to respond to allegations put to him, BP terminated Mr Tracey’s employment and paid him 4 weeks’ pay in lieu of notice. The Full Bench’s decision did not turn on the investigation process or any procedural matters. Importantly, one of the allegations found to be substantiated by the investigation read as follows:
“You created, made available, shared and/or distributed an offensive and inappropriate video which purportedly depicted BP representatives involved in the current Operations and Laboratory Agreement negotiations as Nazis.”
Deputy President Binet’s decision
Binet DP concluded that the video did draw parallels between particular persons involved in the negotiations and the Nazis and was satisfied that the video was offensive and objectively inappropriate in the circumstances. Her Honour reviewed earlier employment cases in which an employee’s likening of their employer to the Nazis was found to be a valid reason for dismissal. In a few of the reviewed cases, the employee directly called their employer Nazis; in another the employee drew a swastika in an ice-block in association with the words ‘Welcome to hell’, in protest of his employment conditions. In each decision, the conduct amounted to a valid reason for dismissal.
With regard to the circumstances of the present matter, her Honour reasoned that the fact that the video was a parody did not render it non-offensive. She analogised the circumstances to a racist joke, that by definition is humour, but is likely to offend a person of the particular race the subject of the joke. Further, that the possibility the video would be looked at by management was not vague or remote, but real. Binet DP also found that Mr Tracey breached BP’s Code of Conduct and various employer policies when he showed the video to other BP employees at work.
Ultimately, her Honour determined that posting the video to the Facebook group and showing it to BP employees at work justified his dismissal. Binet DP did not consider that any countervailing circumstances rendered the dismissal harsh (such as Mr Tracey’s long and unblemished work record and the acute financial impact that the dismissal had for Mr Tracey and his family).
Appeal to the Full Bench
Posting to Facebook
Essential to the Full Bench’s conclusion was the concept of a meme. The Commission explained that evolutionary biologist Richard Dawkins coined the term in the 1970s. Their Honours defined it as follows:
“…a cultural element, concept or behaviour which is passed from one individual to another by imitation and communication”.
The Full Bench reaffirmed Binet DP’s concession that the video was satirical but went further to reject the Deputy President’s finding that the video drew parallels between BP management and the Nazis. The Commission articulated their point, that by depicting Hitler’s outrage in the Nazi bunker in conjunction with the satirical text, was not to draw comparisons between the cruelty and inhumanity of the Nazis and the conduct of BP management in the negotiations. Instead their Honours concluded in their unanimous decision that the meme derives its satire from the gravity of what is depicted visually by the film and the relative banality of what is described in the captions.
The Full Bench expounded that the impugned comparison did not exist, could be concluded without examining the popular mimetic history of the film scene used in Mr Tracey’s video. Nevertheless, considering this context, the satire and inoffensiveness of it became only more evident, their Honours reasoned, as its use for the satirical depiction of events in an entirely imitative way had the effect of ‘culturally dissociating it [the video] from the import of the historical events’. The scene had been used to produce thousands of such memes, where English-language text is inserted to give alternative dialogue to the events depicted for humorous effect (of greater or lesser degree).
Further Full Bench findings to Mr Tracey’s advantage were as follows:
- the act of posting the video to the Facebook group was conduct outside of work and no sufficient detriment to the cooperative working relationship between employees of the Kwinana oil refinery and its management could be established for it to constitute a valid reason for dismissal;
- behaviour of the like is to be expected in the context of tense industrial negotiations;
- the evidence did not establish that the video targeted specific BP staff and it did not constitute a personal attack or bullying of members of the management team;
- it was never intended by Mr Tracey that management would access the video.
Access at work
The Full Bench regarded Binet DP’s reasoning on this point to be infected with error, given her Honour’s finding that the video was objectively offensive. On re-examining the issue, the Full Bench concluded that use of a work computer to access the content did constitute a breach of BP’s policy and his behaviour constituted misconduct, but the breach did not justify his dismissal.
The dismissal was unjust and unreasonable in breach of the Fair Work Act 2009 (Cth), because BP had no valid reason to dismiss Mr Tracey. The dismissal was also harsh, due to the acute financial impact that it caused Mr Tracey and his family
The Full Bench ordered that Mr Tracey’s employment be reinstated within 14 days of their judgment and that his employment record be rectified to reflect no break in his period of continuous service with BP on account of the dismissal. Finally, the Commission proposed to award Mr Tracey compensation for his period of unemployment, pending further submissions from the parties on the following issues:
- any alternative income streams Mr Tracey was in receipt of following the dismissal, reducing his loss; and
- whether any amount awarded by the Commission should be reduced to reflect Mr Tracey’s contribution to the dismissal through his misconduct.
The Full Bench decision reflects the measured approach the Commission can take on social issues and behaviour only dealt with at a very high level by corporate policies and cultural expectations. Employers should seek not to artificially characterise employee behaviour where a considered and empathetic approach to evaluating employee conduct could lead to much different conclusions. The decision to terminate the Applicant’s employment in this case for depicting Nazis in connection with the events of the industrial negotiations appears to have resulted from a mischaracterisation of his conduct. If evidence demonstrated that the employee was otherwise a toxic influence on the employer’s work culture or he had been involved in other dubious conduct, the decision may have been different. The Full Bench’s decision to reinstate his employment demonstrated that their Honours did not consider this to be the case.
Employers should be particularly careful when managing employee conduct that occurs outside of the workplace. In this matter, there was no question of reputational damage to the employer as the employee posted the video to a closed Facebook group with only BP employees as members. Employers should also keep in mind that industrial negotiations can act as a backdrop to an employee’s conduct that goes to the reasonableness of his/her actions.
A transcript for the video is attached to the judgment which subscribers can access here.