We recently brought you a case involving BP’s dismissal of a refinery worker, Mr Tracey, for using a Hitler video which he shared with colleagues to compare BP to Nazis and mock the Oil Refinery’s position in its enterprise agreement negotiations.

The dismissal took effect on 18 January 2019. Following a lengthy legal dispute, the Full Bench of the Federal Court confirmed Mr Tracey’s dismissal was unfair and Mr Tracey was to be reinstated by 14 March 2020.  Read our previous summary, here.

BP undertook that it would pay Mr Tracey as if he had returned to work on and from 13 March 2020 (reinstatement date) pending the final hearing of its judicial review application. Its judicial review application was subsequently dismissed.

Yesterday, the Full Bench of the Fair Work Commission confirmed BP would have pay Mr Tracey in accordance with the applicable enterprise agreement and his contract of employment as though he had returned to work on the reinstatement date plus compensation for the period between Mr Tracey’s dismissal and the reinstatement date, being a period of 60 weeks (first compensation period).

In calculating the compensation payable for the first compensation period, the Full Bench held Mr Tracey’s actions amounted to misconduct which would have warranted a revocation of a previously planned promotion and reduction of the bonus to which he would have been otherwise entitled to under the applicable enterprise agreement. Accordingly, the Full Bench calculated the compensation payable in accordance with Mr Tracey’s pre-existing classification, the minimum bonus available under the applicable enterprise agreement and the superannuation payable on these amounts. Deductions were made to account for payment Mr Tracey received in lieu of notice upon dismissal and which he received in alternative employment during the dispute.

See Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206

Lessons

1. Where an employee has engaged in misconduct which did not warrant dismissal, appropriate compensation is calculated on the basis of the reasonable disciplinary steps permissible under the applicable industrial instrument and contract of employment.
2. Where an employee has remained largely unemployed during a lengthy legal dispute around their dismissal, a deduction may be requested on the compensation payable based on the assessment of what a person with the employee’s skills and experience would have earned in the period between dismissal and reinstatement. While the Full Bench refused to provide such a deduction in this case, its refusal was based on BP’s lack of evidence of the state of the job market in the relevant geographical area.