Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 7 March 2020.
Daniel works for a large manufacturer that is engaged in collective bargaining negotiations with its employees.
Daniel is one of the key negotiators on behalf of the employees and is a member of a closed Facebook group that the employees use to discuss the negotiations and, sometimes, let off some steam.
After one particularly successful day negotiating, Daniel uploads an image from a popular World War Two film, which depicts an extremely angry Adolf Hitler during the final stages of the war.
Under the image, Daniel writes the caption “The negotiations are not going well for the Company”.
The Facebook post is leaked to the Company and Daniel’s employment is ultimately terminated for “offensive and inappropriate” behaviour. The Company claims Daniel has likened managers of the Company to Hitler and the Nazis.
Daniel makes a claim for unfair dismissal to the Fair Work Commission, claiming his post had been unreasonably misinterpreted, as it was a clearly a “meme” and satirical in nature.
At first instance, the Commissioner finds that the post was indeed offensive and throws-out Daniel’s unfair dismissal application.
However, Daniel appeals the decision to a full bench of the Fair Work Commission.
In their decision, the Full Bench finds that the post “does not liken management to Hitler or Nazis in the sense of suggesting that their conduct or behaviour was in some sense comparable in their inhumanity or criminality. What it does do is to compare, for satirical purposes, the position the Company had reached in the negotiation process to the situation facing Hitler and the Nazi regime at the end of the war.”
The Full Bench find that Daniel’s dismissal was unfair.
Daniel’s employment with the Company is reinstated and the Company is ordered to pay Daniel compensation for lost wages.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
