A man in Australia who was sacked after mocking pay negotiations at his company with a well known Hitler meme from the film Downfall posted on Facebook, has won his job back.
BP refinery worker Scott Tracey was sacked in 2018 after the company deemed his post to be “highly offensive” but his appeal last week (28 February) was successful.
Tracey argued told the Fair Work Commission that he had not intended to offend anyone and had not identified BP in the post but despite this, lost his claim for unfair dismissal in September 2019.
In her decision, deputy president of the commission Melanie Binet said she was satisfied the video “did in fact cause offence to a number of BP employees” and added: “I do not accept that by labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive.”
The meme was posted on a closed Facebook group during protracted wage bargaining which started in 2017 and was titled “Hitler Parody EA Negotiations not going the [company’s] way”. It was accompanied by captions.
On appeal, however, Tracey was successful, with the Fair Work Commission finding that the meme had been used thousands of times online for more than a decade “in an entirely imitative way, a satirical depiction of contemporary situations”.
The commission said: “It is apparent that the video does not liken BP management to Hitler or Nazis in the sense of stating or 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 BP had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945.”
The meme came from the 2004 Oliver Hirschbiegel film about Adolf Hitler’s final days in Berlin when the dictator rants to his generals about their various military failings and has been used by sports fans to mock football managers in particular.
Australian Workers Union spokesman Daniel Walton welcomed the decision, saying employees should be able to lampoon bosses in their own time. “The day that right is lost would be a very bleak day for Australia,” he said and AWU West Australian branch secretary Brad Gandy said the decision was “a victory for workers’ rights in the digital era, a victory for common sense, and a victory for Aussie ’larrikinism’.”
Mr Tracey’s lawyer, Kamal Farouque, said: “He is really pleased to get his job back and is looking forward to going back to work at the BP refinery.”
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