An oil and gas technician found to be unfairly dismissed on appeal was last week awarded more than $200,000 in lost earnings by a full bench of the Fair Work Commission.
Vice presidents Adam Hatcher and Joe Catanzariti and Commissioner Susan Booth ordered the technician’s employer, BP Refinery (Kwinana) Pty Ltd, pay $177,320, less tax, for lost salary and bonus plus $24,070 in lost superannuation.
The development puts an end to the much-publicised case involving the worker who was dismissed from his job in 2019 for creating and distributing a parody video comparing the employer’s enterprise bargaining position to that facing Hitler and his henchmen at the end of World War 2.
In September 2018, the employee created the video using scenes from the German-language film Downfall, adding subtitles which referenced details known to those participating in negotiations for the refinery’s new agreement.
The employee then posted the video to a private Facebook page comprising employees engaged in enterprise bargaining with their employer. He also shared it with colleagues using the work computer of another employee and showing it on his personal device.
BP management became aware of the video and commenced an investigation alleging the worker was involved in the creation and sharing of an “offensive and inappropriate” video amongst the workforce in breach of company policies.
In September 2019, the employee’s dismissal was upheld by Deputy President Binet who found the video “caused offence to others”, was “inappropriate” and breached company policies.
On appeal the Full Bench took an opposing view.
It found in the context of the Downfall scenes being used elsewhere in pop culture to satirically depict “contemporary situations” gone wrong, the making and distributing of the video did not constitute a valid reason for the employee’s dismissal.
Reduced total payout
In a minor win for BP, the Full Bench allowed the company to reduce the employee’s bonus and revoke a promotion.
It was described that while the misconduct was insufficiently serious to warrant dismissal, a reasonable and lawful disciplinary response might have included the revocation of the employee’s promotion.
The Full Bench also rejected the employee’s claim for compensation for the loss of his fuel discount based on the average monthly discount he received whilst employed. “There is no evidence of fuel usage by him during the period from the dismissal to reinstatement,” the full bench said.
“We likewise do not consider it appropriate to compensate him for lost earnings for overtime which he never worked.”
