By Grant Hansen -
Snapshot
- An employee can criticise his or her employer, especially in a satirical mode, provided it is not unreasonably offensive.
- Breach of a Code of Conduct, even one which is generally worded could potentially be a basis of a valid termination.
- The test for what is offensive is objective – just because a person says they are offended does not mean they have a valid reason to get an employee sacked.
- In considering whether certain conduct is objectively offensive, regard will be had to the cultural context. Satire which avoids personal attack is likely to be safe.
The recent decision of the Full Federal Court in BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89 (‘FCAFC Decision’) sheds considerable light on the circumstances in which an employee could be lawfully terminated for breach of employer’s policies on matters that do not directly affect work performance, and also suggests an outbreak of sanity may not be too much to hope for in an era quick to take offence.
Background
Mr Tracey worked at the BP Kwinana Refinery. During the course of a robust Enterprise Agreement negotiation, he was involved in the creation of an audio-visual work which: ‘[I]t was alleged, depicted BP representatives involved in negotiations of a new enterprise agreement with BP employees as Nazis. The video depicts extracts from the film Downfall in which Hitler acts in a highly agitated and aggressive manner when informed by his generals that his regime has lost the Second World War’ (FCAFC decision at [2]).
BP management was not amused. An initial interview with Mr Tracey was conducted; a ‘stand down’ letter issued to Mr Tracey telling him what was being investigated, the potential consequences and inviting provision of further information. A report was sent to a manager in BP Melbourne to further investigate, and then a ‘show cause’ meeting was held, attended by Mr Tracey and a support person and no fewer than five BP executives. Following the ‘show cause’ meeting, Mr Tracey was given a further opportunity to comment on the proposed findings. Mr Tracey did respond to that, objecting to the investigation process, the substantive findings, and raising mitigating factors.
About four weeks after the ‘show cause’ meeting, at a final meeting, Mr Tracey was dismissed with immediate effect and paid four weeks salary in lieu of notice. The reason for the dismissal was the creation and distribution of ‘an offensive and inappropriate video which purportedly depicted BP representatives involved in the current Operations and Laboratory Agreement negotiations as Nazis’ (Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113 at [53] (‘FWC decision‘)).
The decision-maker was careful to record that she had considered both Mr Tracey’s explanation and his mitigating circumstances (an unblemished seven-year work record). The process was found to have been adequate to afford Mr Tracey procedural fairness. The fault in the termination, as ultimately decided, was substantive, not procedural. Pausing here, a bystander may have wondered what any of this had to do with Mr Tracey’s work performance. After all, employees discussing or even, God forbid, making fun of the foibles of their managers and colleagues, is not exactly unknown. The allegations which BP relied on were breaches of its Code of Conduct and certain policies, specifically:
‘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’ (at [109]); ‘Treat everyone with respect’, ‘be respectful of cultural differences’; and ‘offensive messages, derogatory remarks and inappropriate jokes are never acceptable’ (at [110]); and ‘Employees are responsible for treating all colleagues and customers with respect and professionalism without regard to non-relevant, unlawful criteria or distinctions’ (at [111]).
There was also an allegation that the distribution of the video breached BP’s IT equipment policy.
Decision at first instance
At first instance, FWC Deputy President Binet found that it is lawful and reasonable for an employer to require an employee to comply with policies and directions which control the nature of communications over the employer’s electronic communications system and to discipline, and where appropriate, terminate the employment of an employee who is found to have breached those policies (FWC decision at [135]).
