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Introduction

Full decision here.

Full Bench overturns Hitler parody decision, reinstatement & $180,000 backpay

A BP worker who was sacked for his role in producing a Hitler parody and (as I previously reported) the FWC did not see the funny side either, in rejecting the unfair dismissal application, is now laughing all the way to the bank! All thanks to a Full Bench appeal.

I previously reported on this matter with the same caption. I used this caption to illustrate what I thought was an employer taking itself too seriously.

Without using the exact words, the FB cautioned the original decision-maker in having fun in the workplace.

Background

By way of catch-up, the original decision found the producer of the Hitler parody of the BP management scenes from a German movie on the last days of Hitler’s regime (which was a popular method of satirising various issues using caption-making software) using made-up captions deriding management in relating to a very difficult enterprise bargaining process was serious misconduct by the presiding Deputy President.

[One would have thought the company which was the subject of its own movies “Deepwater Water Horizon” would have a more positive view of the art of movie making].

For those of you with the time and technical know-how, the video was prepared using a website called “Caption Generator”. This website contains a small collection of video clips with non-English dialogue and allows the user to add subtitles to create an alternate story or theme for the video. The most well-known of the videos is a clip from the German language movie Downfall, which portrays the last days of the Third Reich and is centred on events in Adolf Hitler’s bunker near the Reich Chancellery building in Berlin.

The FB in this appeal took into consideration that the video appeared (as one of thousands of videos) on the Caption Generator website; and

“It is reasonable to say that it could only be found on that website if one already knew it was there and used the browse function to search for it”.

The original decision

In the original decision, the DP found:

“[99] I do not accept that by labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive. A racist joke is by name humour but is likely to offend a person of the nationality at which it is aimed.

“[100] Depending on the circumstances in which it occurs ‘poking fun’, ‘taking the mickey’ or ‘sending up’ might be disrespectful, rude, demeaning and/or offensive. For example, ‘sending up’ a religious deity might be deeply offensive to some groups of people.

“[101] The FWC and its predecessors have previously considered cases in which an employee has made references, or likened their employer, to Hitler or the Nazi regime. In APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 it was held that carving the words “Welcome to hell” and etching a swastika into an ice block in protest of the conditions of work in a freezer room was insulting and offensive conduct (whether or not the business employed Jewish people or the employee intended to offend anyone). Such conduct was held to have been a valid reason for the relevant employee’s dismissal.

“[102 In CPSU v Australian Broadcasting Corporation [2005] AIRC 737 SDP Drake held that calling an employer a ‘Nazi’ was ‘inappropriate and offensive’ even in the ‘context of a heated industrial meeting’.

“[103] In Pitt v Woolworths (SA) Pty Ltd [2003] AIRC 673 an employee’s actions in calling his employers ‘Nazis’ was found to amount to a valid reason for his dismissal.”

“[105] I am satisfied that when viewed in context that a reasonable person would consider the Hitler Video inappropriate and offensive”.

The Deputy President’s overall conclusions as to the fairness of the dismissal were as follows:

“[207] While [the applicant] expressed remorse during the Investigation and in these proceedings, his remorse is expressed in terms of him not intending to cause offence, if it occurred. He does not appear to accept that his conduct did cause offence or that it could reasonably be said to cause offence. Given this lack of insight it is likely that he would come into further conflict with his employer.

“[208] In all the circumstances, and taking into account the heavy emotional and financial impact of the dismissal on [the applicant] and his family, and taking into account the payment in lieu of notice, I am satisfied that his dismissal was not harsh, unjust and unreasonable.”

Appeal grounds and submissions

The Full Bench’s Consideration

In granting permission to appeal (as we know, to appeal a FWC decision, you must enliven “the public interest”) the FB found:

“…Accordingly, the critical issue which the Deputy President had to determine was whether the conduct was of such a nature to justify dismissal. This required the making of an evaluative judgment on her part as to the character of the video’s content”.

The FB finding that is was not open to the DP to find that there was no evidence that characterised the video as offensive or inappropriate. The FB finding:

“We do not accept that it was reasonably open for the video to be characterised in the way it was by the Deputy President. Even considered in isolation from its memetic context, it is apparent that the video 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. What it does do is to compare, for satirical purposes, the position BP had reached in the enterprise bargaining process…to the situation facing Hitler and the Nazi regime in April 1945. The position might be different if the clip used from the Downfall film depicted Hitler or Nazis engaging in inhumane and criminal acts (as many other parts of the film do); in such a case a comparison in terms of conduct or behaviour might be inferred and reasonably be regarded as offensive. But it does not. By way of illustration, if it is said that someone is like Napoleon at Waterloo, this is obviously not to be understood as drawing a comparison between the person and the personality, behaviour, deeds or stature of Napoleon Bonaparte; rather, it is a stock way to say that the person is facing a final, career-ending defeat”. [My emphasis]

Criticism of management is reasonable

The FB, in granting permission to appeal, finding that:

“The Deputy President’s erroneous determination that there was a valid reason for [the applicant’s] dismissal was fundamental to her decision that his dismissal was not unfair and that his unfair dismissal remedy application should be dismissed. Because the decision was affected by error in this way and manifests an injustice to [the applicant], and because the appeal raises issues of general application concerning the capacity of employees to engage in legitimate criticism of management in the conduct of an industrial dispute, we consider that the grant of permission to appeal would be in the public interest”. [My emphasis].

The FB then went on to re-determine the matter, using the materials from the original hearing.

Remedy

In this decision, the FB reinstated the applicant to his former permission, because the video did not identify any management person by name, stating:

“Reinstatement is the primary remedy provided for in respect of unfair dismissals under the FW Act in the sense that s 390(3)(a) requires that there be a finding that reinstatement is inappropriate before consideration can be given to the award of compensation. Accordingly, in respect of remedy, the primary issue which must be considered is whether it would be appropriate to make an order for [the applicant’s] reinstatement. In considering whether to exercise its discretion in favour of the making of an order of reinstatement, the Commission will treat as an important consideration whether the necessary trust and confidence for a workable, viable and productive employment relationship can be restored”.

Orders and directions

We make the following orders:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision ([2019] FWC 4113) is quashed.

(4) BP Refinery (Kwinana) Pty Ltd is ordered to reinstate the applicant to the position in which he was employed immediately before his dismissal within 14 days of the date of this decision.

(5) BP Refinery (Kwinana) Pty Ltd shall maintain the continuity of the applicant’s employment and the period of his continuous service upon the applicant’s reinstatement taking effect.

Direct that the applicant and BP file any evidence and submissions concerning the making of a compensation order pursuant to s 391(3) within 21 days.

The compensation order

With the subsequent back pay decision awarding the applicant $177,324.93 on account of lost salary and bonus (less applicable taxation), and should additionally pay the amount of $24,069.99 on account of lost superannuation into a superannuation fund nominated by the applicant. The amounts shall be payable within 14 days of the date of this decision.

Commentary

There is a lot to like about this decision. There is an old saying “without malice or aforethought” which seems just right for this matter. In my view BP management should have used the video parody as a training video or at a management meeting so that they could allow an opportunity to see the humour in what, was a no doubt, a very tense situation. Who knows, there might even be opportunities for BP to use the obvious talents of their employee in its public relations department!