A BP refinery employee who was dismissed for producing a video that depicted senior management as Nazis has lost his unfair dismissal claim with the Fair Work Commission (FWC).
The operations technician shared the video with other employees on a private Facebook group when negotiations for a new enterprise agreement at the refinery had broken down and the workplace environment became increasingly tense.
BP discovered the video and conducted an investigation into its creation and distribution, later dismissing the employee for breaching the employer’s code of conduct, information protection policy and bullying and harassment policy.
The employee argued during the investigation that the video was meant to be “humorous” and “boost morale” and that he “had not intended to offend anyone”.
Parody not a ‘get out of jail free card’
In the unfair dismissal hearing, the employee told the FWC that the video could not be said to depict the senior managers as Nazis, or to attribute to them traits attributed to the Nazi regime because the Hitler video was intended to be a parody, even though it was “artistically based partly upon events” in the company.
“By definition a parody assumes and pre-supposes that what is being conveyed is humour, it is poking fun, it is taking the mickey, it is hilariously ‘sending up’ characters portrayed by it; its purpose by definition is [to] use absurdity to make a light point,” the employee submitted.
FWC Deputy President Melanie Binet disagreed.
“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,” she said.
“A racist joke is by name humour but is likely to offend a person of the nationality at which it is aimed.
“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.
“[The employee] may well have been endeavouring to raise morale but did so by demeaning, undermining and denigrating the leaders in his organisation.
“Had a member of BP management team created a video portraying delegates and union officials in a similar manner for a management function I would anticipate it would have rightly caused uproar among the workforce and led to its creator’s swift removal from the organisation,” Deputy President Binet said.
Calling employers ‘Nazis’ is off limits
Deputy President Binet cited three cases where an employee likening their employers to Nazis was found to be unacceptable.
APS Group (Placements) Pty Ltd v O’Loughlin (2011)
“[I]t 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.”
CPSU v Australian Broadcasting Corporation (2005)
“Senior Deputy President Drake held that calling an employer a ‘Nazi’ was ‘inappropriate and offensive’ even in the ‘context of a heated industrial meeting’.”
Pitt v Woolworths (SA) Pty Ltd (2003)
“[A]n employee’s actions in calling his employers ‘Nazis’ was found to amount to a valid reason for his dismissal.”
Employee was remorseful, but lacked insight
“I am satisfied that [the employee’s] conduct provided a valid reason for his dismissal,” Deputy President Binet said.
“While [the employee] 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.
“I am satisfied that his dismissal was not harsh, unjust and unreasonable.
“Accordingly, I find his dismissal was not unfair.”