Unfortunately, inappropriate and offensive behaviour in the workplace is not uncommon. However, can an employer proceed straight to dismissing an employee after learning of such behaviour?
The Fair Work Commission (FWC), in Tracey v BP Refinery (Kwinana) Pty Ltd  FWC 4113, has recently upheld the dismissal of a worker who helped create a Hitler parody video which depicted his senior managers as Nazis. The video drew a parallel between Hitler and his officers, on the one hand, and the employer and its workers during protracted enterprise bargaining negotiations, on the other.
The worker shared the video with his work colleagues on a social media group, in the workplace on the employer’s computer and also from his private mobile device.
After learning about the existence of the video, the employer suspended the employee on pay for a period of 4 months to conduct an investigation into the alleged misbehaviour. As a result of the investigation findings, the worker was summarily dismissed.
The worker made an unfair dismissal application to the FWC seeking reinstatement and compensation for lost wages.
The worker’s case
The worker argued that there was no valid reason for his dismissal because the video was of a “humorous” nature and was intended to “boost morale” of the workers who took part in the protracted enterprise bargaining negotiations. The worker claimed further that because the video was not offensive, the creation and distribution of it was not in breach of the employer’s workplace policies.
The worker also alleged that his dismissal was unfair, because there were flaws in the employer’s investigation process and the employer’s policies were vague.
To support his case, the worker also argued that the video was created by his wife of her own volition, and as such he should not be held accountable for it.
The employer’s case
In defending the worker’s dismissal, the employer’s position was that the worker’s behaviour was in breach of multiple workplace policies. It argued that the video “appeared to depict a number of (…) employees as Nazis and referenced very specific information related to what was happening [in the workplace] at the time [and during the protracted enterprise bargaining negotiations]“.
The specific information included reference to presentations held by the employer during the enterprise bargaining negotiations, which would not otherwise be known to persons outside the workplace.
The employer also argued that the process leading to the dismissal was fair, and that it took the necessary steps to ensure the impartiality of the investigator and the ultimate decision maker.
The FWC rejected the worker’s arguments and decided that the summary dismissal of the worker was not harsh, unjust or unreasonable, notwithstanding that the dismissal had a “heavy emotional and financial impact [on the worker] and his family“. It also rejected the worker’s claim that the video had been prepared by his wife, ruling that this simply was not credible.
Why the employer was able to defend the unfair dismissal claim?
The employer was able to successfully defend the worker’s claim, because the FWC accepted the employer’s evidence that:
- It undertook its disciplinary investigation in a careful and methodical manner;
- It provided the worker with a letter setting out the allegations against him and provided the worker with multiple opportunities to respond to the allegations;
- The worker was not unreasonably refused a support person to assist in discussions with the employer relating to the dismissal;
- When viewed in context, “a reasonable person would consider the Hitler video inappropriate and offensive”;
- The worker’s behaviour was in breach of the employer’s policies, which were not vague or ambiguous about the expected standards of workplace behaviour;
- The worker was notified of the reason for his dismissal and provided with multiple opportunities to respond to the reasons for which he was ultimately dismissed; and
- The employer ensured that both the investigator and the person who acted to terminate the worker’s employment were not persons who had been involved in the enterprise bargaining negotiations, and were, therefore, impartial.
Lessons for employers
The FWC’s decision is currently the subject of an appeal. However, the case nonetheless provides a helpful reminder of the standards employers will be held to should they decide to dismiss an employee based on inappropriate and offensive behaviour and in particular in conducting an investigation and making findings.
A disciplinary process may often require the investment of a significant amount of time and resources. However, as this case shows, it is essential to ensure a fair investigation is undertaken before deciding to dismiss an employee, if employers want that decision to withstand challenge.
However, is a fair investigation process enough to defend an unfair dismissal proceeding?
Even the most robust and fair disciplinary investigation may not result in a lawful dismissal in the absence of workplace policies and procedures which clearly set out the standards of behaviour expected of employees and outline the consequences of non-compliance with the policies. We, therefore, recommend you review your workplace policies (including codes of conduct, confidentiality and protection of information policies, use of IT systems and social media policies) to ensure they clearly outline what types of behaviour are acceptable and unacceptable in the workplace, the consequences of a breach and enable the business to take action in the event of alleged misconduct by an employee.
We would be pleased to help you manage investigation process and disciplinary action, develop workplace policies suitable to your business or provide pre-dismissal advice.
This article was written by Clare Raimondo, Partner and Michal Bergander-Florek, Solicitor.