The Fair Work Commission has ordered the reinstatement of a BP technician sacked for sharing a Downfall parody video, after the Australian Workers Union successfully appealed a controversial tribunal ruling rejecting his unfair dismissal claim.
The technician, who will also be compensated for lost earnings, had changed subtitles on the video portraying a ranting Adolf Hitler to make a “humorous parody” of enterprise bargaining negotiations at BP’s Kwinana refinery in Western Australia.
BP sacked the worker after finding he had been involved in creating and sharing an offensive video depicting company representatives “as Nazis”.
Rejecting the worker’s unfair dismissal claim, commission deputy president Melanie Binet said she was satisfied the video was “objectively inappropriate”, offensive and “did cause offence to a number of BP employees”.
“The Hitler video had the potential to undermine, demean and denigrate the BP senior management team amongst an audience which they were charged to lead,’’ she said.
Upholding the AWU appeal on Friday, a commission full bench found it was not reasonably open for the video to be characterised in the way it was by Ms Binet.
The full bench said the clip has been used thousands of times over more than a decade to create a satirical depiction of contemporary situations.
“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,” it said.
Finding Scott Tracey’s dismissal was unjust and unreasonable because there was no valid reason for his sacking, the full bench ordered he be reinstated and BP compensate him for lost earnings.
The full bench said the video “did 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,” it said.
“The position might be different if the clip used from the Downfall film depicted Hitler or Nazis engaging in inhumane and criminal acts (as many other parts of the film do).
“In such a case a comparison in terms of conduct or behaviour might be inferred and reasonably be regarded as offensive. But it does not.
“By way of illustration, if it is said that someone is like Napoleon at Waterloo, this is obviously not to be understood as drawing a comparison between the person and the personality, behaviour, deeds or stature of Napoleon Bonaparte; rather, it is a stock way to say that the person is facing a final, career-ending defeat.”
AWU national secretary Daniel Walton said the meme had been “used in the context of sporting clubs, TV reality shows, international relations and everything in between”.
“For BP to allege this had anything to do with actually comparing management to Nazis was obtuse at best, but more likely disingenuous,” he said.
“Workers should be able to take the piss out of management with their colleagues in their own time. The day that right is lost would be a very bleak day for Australia.”
Brad Gandy, AWU WA branch secretary said the decision was “a victory for workers rights in the digital era, a victory for common sense, and a victory for Aussie larrikinism”.
“How BP decided an employee could be terminated for a private joke amongst mates is beyond me, but I’m very grateful the Fair Work Commission has set things right today,” he said..