The Fair Work Commission (the “FWC”) and the Full Bench of the Fair Work Commission (the “FWCFB”) have recently ordered the reinstatement of two employees having found that, in each instance, the employee’s “misconduct” did not justify dismissal. In a concerning precedent for employers, both the FWCFB and FWC gave extensive consideration to the “context” of the misconduct which, on its face, may have warranted dismissal. This exacerbated the reinstatement risk but also an order for the employer to reimburse each individual for lost income in the period between dismissal and reinstatement.

Each case serves as a warning to employers that in some circumstances, context is everything.

A FWCFB case:

Concerningly for employers, the FWCFB has ordered an employer to reinstate a dismissed employee and pay $201,390.00 in lost wages and superannuation following a finding that the employee’s “misconduct” was not serious enough to warrant dismissal.

Background

The employer and its operations workforce were involved in a long-running industrial dispute in respect of a new enterprise agreement. The bargaining involved proposals from the employer to make major changes to existing terms and conditions. These changes were rejected by 98% of employees when put to a vote in 2018.

Mr T was dismissed on 18 January 2019 after he shared a video he had created with his wife entitled “Hitler Parody EA Negotiations”. The video used a well-known scene from the movie “Downfall” which portrays the final days of the Third Reich and depicts Hitler breaking down. In the video, it is apparent Hitler has been assigned the role of an unnamed Manager and via subtitles, he is informed that employees have voted overwhelming to reject the employer’s proposed enterprise agreement.

This video was shared on a closed Facebook group comprising employees and on shift via the personal device of Mr T and a work computer.

The employer terminated the employment of Mr T on the basis that he:

• created, made available and shared an offensive and inappropriate video which purportedly depicted the employer bargaining representatives as Nazis and that such conduct constituted a breach of the employer’s “Code of Conduct” and “Respect and Equal Opportunity Policy”; and
• inappropriately used the employer’s computers, logins and/or networks to create, access, share and/or distribute the video which constituted a breach of the “Code of Conduct” and the employer’s “protecting our Information Policy”.

Findings

The FWCFB found that the video in question did “not liken [the employer’s] management to Hitler or Nazis in the sense of stating or suggesting that their conduct of behaviour was in some sense comparable in their inhumanity or criminality”, rather it compared “for satirical purposes, the position BP had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945.”

In coming to this finding (creating a high reinstatement risk), the FWCFB noted that the “Downfall” scene had been “used thousands of times over a period of more than decade for the purpose of creating a satirical depiction of contemporary events.” The FWCFB further noted that sharing the video on a private Facebook page was purely out-of-work conduct and the evidence did not demonstrate that it had any relevant adverse effect on the conduct of work.

In these circumstances, the FWCFB did not consider the video to be offensive or inappropriate and did not consider its creation and sharing to be a valid reason for dismissal. While the FWCFB did accept that the use of a work computer during work hours to show another employee the video did constitute a breach of the employer’s policy and did give rise to misconduct, this was not considered to be “sufficiently grave conduct” to justify dismissal in light of the finding that the video was not itself offensive and inappropriate as alleged.

The FWCFB found that the dismissal was harsh, unjust or unreasonable and ordered that Mr T be reinstated and compensated for remuneration lost due to the dismissal. A stark reminder for employers that in some cases context is everything.

A copy of the FWCFB decision is available here.

Calculation of Compensation

Following an unsuccessful appeal to the Full Federal Court of Australia, the matter was remitted for the FWCFB to calculate compensation to be paid to Mr T.

As the employer would have been unable to refuse to pay Mr T part of his salary as a financial penalty had he not been dismissed, the FWCFB did not accept the employer’s submission that there should be a deduction on account of the misconduct identified by the FWCFB.

Accordingly, the FWCFB ordered that the employer pay Mr T for the period following the dismissal, less deductions for salary paid in lieu of notice and any earnings received by Mr T from alternative employment.

A copy of the FWCFB decision on remedy is available here.

A FWC case:

Background

Mr B’s dismissal arose from a racist message he inadvertently sent to a work WhatsApp group. His message stated, “As I was watching Henry with his [Rubik’s] cube I realised the difference between Asians and Anglos. Asians have no interest in understanding, they are content to just learn the formulas or routines and it doesn’t matter if they understand them.” A minute later he sent a further message stating “That’s why they can’t solve problems”.

After being “called-out” by a fellow employee, the messages were immediately deleted by Mr B and were deleted within minutes of being sent. Mr B sent an apology message and indicated that the messages had been sent to the “wrong chat”.

In a subsequent disciplinary meeting, Mr B admitted that the comments were “100% racist” and inconsistent with his employer’s policies but stated that they were part of a conversation with his wife about their nine-year-old son who was struggling academically compared with classmates “who happen to be of Chinese descent”. The reason for this was a different learning style attributed to tutoring programs such as Kumon.

During the disciplinary meeting, the applicant noted that he had on numerous occasions been called a “TWG” (meaning Token White Guy) by his colleagues which gave rise to a further investigation.

Mr B was subsequently dismissed on the basis that:

• he continued to hold racist views;
• the messages had a serious impact of colleagues;
• the messages undermined his ongoing relationship with his colleagues;
• he had been previously warned about his conduct; and
• the conduct breached the code of conduct and workplace behaviour policy.

Findings:

Ultimately, the FWC found that the conduct constituted a technical breach of the Code of Conduct and the Workplace Behaviour Policy but did not on its own, or in combination with other reasons, justify dismissal.

The FWC accepted that the initial messages were racist and constituted misconduct. However, the FWC considered that the almost immediate retraction and apology for those messages reduced the seriousness of the misconduct.

In respect of holding any racist views, the FWC found that although Mr B may still hold views about “the lack of problem solving ability of “Asian” nine-year-old school children resulting from the Kumon method of tutoring”, it had no doubt that Mr B would not express this view again in the future. The FWC considered that “holding a view without expressing it in a matter outside of work about a non-work-related matter is not a valid reason for dismissal”.

On consideration of the evidence, the FWC found that while some colleagues were offended, the message did not have a “serious impact” on colleagues, nor was there evidence supporting the conclusion that an ongoing relationship with colleagues had been compromised. The FWC found the fact that the employer then took the course of investigating not the initial message and their impact, particularly on identified recipients, but instead embarked upon an investigation of the use of the acronym “TWG”, was “simply inexplicable”.

In relation to procedural fairness, the FWC found that while Mr B was aware of certain things being considered and certain enquiries possibly being made, Mr B was not notified of the reasons for the dismissal and was not given an opportunity to respond. This created a high reinstatement risk. While the employer submitted that “the gravity of the Applicant’s conduct was such that any failure in relation to matters of procedural fairness was not material to the outcome”, as the FWC came to a different view as to the existence of valid reasons for the termination and the gravity of the conduct, the absence of procedural fairness was material to the outcome of this matter.

The FWC found that the dismissal was harsh, unjust and unreasonable and substantively and procedurally unfair. The FWC ordered that Mr B be reinstated and that employer compensate Mr B for lost remuneration.

A copy of the FWC decision is available here.

Takeaways

Despite the apparent seriousness of any misconduct, it is essential for employers to consider the context of the conduct, provide the employee with an opportunity to respond, and consider whether any alleged conduct could be characterised as out-of-work conduct. A failure to do so could result in reinstatement and significant exposure for compensation payments. It is important to remember that is some cases context is everything.