A BP worker who was sacked for posting a Hitler Downfall parody video has argued the Fair Work Commission got it wrong by ruling the dismissal was fair.
In the original decision, deputy president Melanie Binet found that the video was “objectively offensive” and demeaned BP management as it likened them to Nazis and mass murderers, and BP was therefore right to sack the worker.
Scott Tracey, who had worked for BP for seven years, posted the video to a private Facebook group.
It was a version of the popular meme which allows users to replace subtitles over a scene of the movie Downfall about Hitler’s final hours.
The version Mr Tracey posted on social media made fun of BP management during protracted Enterprise Agreement negotiations.
Deputy president mischaracterised meaning of video
Lawyer Kamal Farouque, representing Mr Tracey on behalf of the Australian Workers’ Union, argued on appeal that the video’s meaning in popular culture was critical to correctly characterising the conduct that resulted in the dismissal.
“It’s remarkable that given the divergent positions of the parties… the decision of the deputy president makes no reference to that history, the history of the genre, the prevalence of that video in the public domain. It’s silent,” he said.
Parody not a ‘get out of jail free card’
There are hundreds of the Hitler Downfall parodies on You Tube that make fun of everything from election results to soccer matches.
Many have been viewed hundreds of thousands of times.
In the original decision, deputy president Binet said parody was not a “get out of jail free card” when it came to offensive material.
But Mr Farouque argued she had so significantly mischaracterised the conduct that her decision fell into error.
Management had never seen the meme
BP lawyer, Heather Miller, told the appeals bench that no one in management had seen the Downfall meme before, and argued that there was “no reason why anyone needed to use the Downfall video for parody – there’s any number of fictional material out there which could have been used.”
“In those circumstances where it was chosen and is populated solely by Nazis… statements made by BP are attributed to those Nazis, and Hitler, the leader of the Nazis, has language attributed to them which is the language of [BP managing director] Brett Swayn.. to say it’s not depicting someone as a Nazi is a very semantic argument,” she said.
The full bench was told that no one in the private Facebook group was offended by the video, and BP did not call Mr Swayn, who it claimed had found it offensive.
The full bench has reserved it’s decision.
Social media is for cat videos
Industrial advocate Miles Heffernan from Industrial Relations Claims said the case is a reminder to all employees to be careful what they post on social media.
“Many workers have lost their job because of something they have posted on Facebook or Twitter,” he said.
“Even if you think it’s private, or you think you are posting anonymously – you’re not – and your employer can use what you post against you.”
Mr Heffernan advised workers to never post anything to social media accounts that is work related, or anything that is critical of their employer, or clients of their employer.
“Social media is for duck-faced influencers and funny cat videos – and that’s it,” he said.
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