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The BP 'Downfall' parody video decision: where next for workplace free speech?

17th March, 2020

An edited version of this post was published in The Sydney Morning Herald, 6 March 2020: BP decision struck a blow for employees’ right of free speech

A few weeks ago, a Full Bench of the Fair Work Commission found that a BP refinery worker dismissed for making a Hitler parody video, based on the movie ‘Downfall’, should be reinstated.

The decision is one of few in recent years to put a handbrake on the increasing levels of employer control over employees’ conduct and free speech rights.

Restrictive workplace policies have been upheld by the courts, allowing employers to dismiss employees for out-of-hours conduct including private social media posts considered detrimental to business interests or reputation.

This case was different, in that the alleged misconduct of Scott Tracey occurred in the context of a long-running enterprise bargaining dispute between BP and the Australian Workers Union.

Both parties engaged in hard tactics in the negotiations for a new agreement at the company’s Kwinana refinery. BP sought to terminate the existing agreement, which would have forced workers onto the underlying award. The union and its members took protected industrial action. Then the company obtained an order from the FWC terminating all industrial action.

In this tense atmosphere, Tracey and his wife created a video called ‘Hitler Parody EA Negotiations’. They used a caption generator to create an alternative story to that depicted in the famous scene from Downfall, where Hitler launches a tirade against his generals in the last days of the Third Reich.

In this new version of the scene, Hitler (an unnamed BP manager) is enraged about employees voting down the proposed enterprise agreement and the failure of the company’s bargaining strategy.

The video appeared on the caption generator website, and Tracey posted it on a closed Facebook page accessible by all BP Kwinana employees. He also showed the video to some co-workers during the nightshift, using his personal device and the work computer of another employee.

These are also important distinctions from many of the other previous cases: here, it was clear that some of Tracey’s alleged misconduct occurred during work hours and using employer-provided equipment.

BP regarded his creating and sharing of the Downfall parody video as offensive and inappropriate. The company sacked him for breaching its Code of Conduct and policies on respect in the workplace and permitted use of IT equipment.

The central issue therefore was whether Tracey’s actions constituted a valid reason for dismissal. That required making an evaluative judgment of the content of the video. The Full Bench rejected BP’s characterisation of the video, finding that it did not depict the BP management team as Nazis. Instead, the video compared (for satirical purposes) the position BP had reached in enterprise bargaining to the situation facing the Nazi regime in 1945.

The Full Bench also took into account that the Downfall clip had become a meme, used thousands of times to create satirical depictions of contemporary situations: ‘culturally dissociating it from the import of the historical events portrayed in the film’. The video would be understood by the reasonable viewer as satirising BP’s conduct in the negotiations, it did not personally denigrate any individual manager, and therefore was not offensive or inappropriate.

On this basis, the Full Bench found that Tracey’s creation and sharing of the video (including the use of BP’s equipment to do so) did not constitute a valid reason for dismissal, and ordered his reinstatement.

The FWC member who first heard this case did ‘not accept that labelling something as a parody is a “get out of jail free card” and necessarily means something is not offensive’. That was a narrow approach to the characterisation of the video, which separated it both from the workplace context (the enterprise bargaining dispute) and the cultural context (the widespread use of Downfall parody videos).

The Full Bench’s decision noted that the appeal raised ‘issues of general application concerning the capacity of employees to engage in legitimate criticism of management in the conduct of an industrial dispute’. In that sense, the decision indirectly strikes a much-needed blow in favour of employee free speech rights in the workplace.

Those rights are not, however, unlimited. The permissible scope of employee free speech will need to be tested in future cases exploring the interaction of political or religious expression protected by anti-discrimination laws, and employer rights of control through the employment contract and workplace policies.

BP’s Federal Court appeal against the FWC Full Bench’s decision in the Downfall video case will also be an important indicator of the ability of businesses to limit the expression of employees’ views at the workplace.    

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