BP Refinery v Tracey

In lodging an appeal to the Full Bench of the FWC against the initial decision, Tracey was represented by plaintiff law firm Maurice Blackburn. His legal representative told the Australian Financial Review it "[would submit] that the dismissal is incredibly harsh when [considering] the true nature and effect of the video, which is a well-known Downfall parody video...I don't think it could be reasonably considered that the video likens any BP managers or staff to Hitler or Nazis, but ultimately this will be a decision for the full bench of the [FWC]".[8]

The primary issue in dispute was whether Tracey's actions constituted a valid reason for dismissal.[1] Tracey argued that in failing to understand the video in its broader cultural context, she had erroneously mischaracterised it as offensive and that it was a "device to make a humorous point about a matter not going to plan".[10] Vice president of the FWC Adam Hatcher stated thousands of similar parodies had been posted to the internet since the meme hit its peak in 2010,[11] and the Full Bench would apply an objective test to determine the offensiveness of the video.[10]

The Full Bench of the FWC overturned the first decision, finding the video compared the position BP reached in the negotiations with that which the Nazi regime was faced at the end of World War II,[9] observing that the meme was "culturally dissociat[ed]" from real events and that it has been used "thousands of times over a period of more than a decade for the purpose of creating, in an entirely inventive way, a satirical depiction of contemporary situations".[12] The Full Bench of the FWC concluded that it was unreasonable to find the video likened BP management to Nazis, stating "anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving Hitler or Nazis".[12][13]

BP then applied to the Full Federal Court seeking a writ of certiorari – effectively requesting it quash the decision made by the Full Bench of the FWC on the grounds its decision was contrary to law. First, BP argued the Full Bench of the FWC erred in applying its discretion in not applying a test which required Binet's decision to be "fundamentally wrong and not reasonably open on the facts, rather than just a decision that the appellate court would itself not have reached on an evaluation of the evidence".[9] Second, BP claimed that the Full Bench of the FWC had neglected to evaluate whether there was a major error of fact and that the issue of whether Tracey's behaviour breached the relevant BP Code of Conduct was one of fact.[9] The Full Federal Court dismissed BP's claims and instead upheld the decision made by the Full Bench of the FWC.[14] The Full Federal Court ordered Tracey's reinstatement,[4] and he returned to work in March of 2020.[14]

After being returned to work, compensation for the work he had missed between his termination and subsequent reinstatement was the only outstanding issue.[14] Almost two years after Tracey lodged his initial unfair dismissal application, Tracey was awarded compensation by the Full Bench of the FWC.[4][14] BP argued Tracey should receive less than the salary he otherwise would have earned during this time due to his misconduct. BP also claimed his payment should be reduced because he ought to have found other work during the time he awaited an outcome. Tracey argued he had looked for work, which the Full Bench of the FWC accepted. It was also held his misconduct could only justify withholding any money he may have earned from potential promotion during his absence.[14] The Full Bench of the FWC ordered Tracey be paid a total of $201,394.92 in lost wages and retirement benefits.[4][14][15] The Australian Workers Union said Tracey's win was a "victory for workers rights...and Aussie larrikinism".[4]