The Fair Work Commission decided to reinstate Scott Tracey who was sacked by BP after he used a clip from the German-language movie Downfall to portray his dismay with the enterprise bargaining negotiations that were taking place at BP at the time.
In September last year, the commission ruled that the dismissal of Mr Tracey by BP Refinery (Kwinana) Pty Ltd “was not harsh, unjust or unreasonable”.
At the time, the commission found that Mr Tracey’s use of a meme in which “Hitler responds in a highly agitated and aggressive manner to advice from his generals that his regime has lost the Second World War” was “inappropriate and offensive”.
BP argued that Hitler’s character was associated with comments made by BP Refinery’s manager during the negotiations, and that the video “draws a parallel” between Hitler and his officers and the refinery’s management.
However, following an appeal by Mr Tracey, the FWC has decided to overturn its decision and has ordered BP to reinstate him to the position in which he was employed before his dismissal within 14 days.
The Fair Work 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 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.”
The FWC further explained that the position becomes even clearer when the context of the development of the use of the Downfall clip into a meme is considered.
“That the clip has been used thousands of times over a period of more than a decade for the purpose of creating, in an entirely imitative way, a satirical depiction of contemporary situations has had the result of culturally dissociating it from the import of the historical events portrayed in the film.”
As such, the commission concluded that “there is no doubt that the clip would be understood by the reasonable viewer as satirising BP’s conduct during the enterprise agreement bargaining process at the Kwinana refinery.
“That, by itself, did not make it offensive or inappropriate.”
Mr Tracey had worked as an operations technician at BP’s Kwinana refinery in Western Australia at the time of his termination. FWC noted that he began working with the company in January 2012 as a process technician, following an initial employment contract from the previous October.
At the time his employment with BP ended, he was covered by the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014.
By around June 2017, BP and the union began negotiating a new enterprise agreement, but the FWC said that “as the negotiations dragged on without resolution, the industrial environment became increasingly tense”, before the parties turned to the commission to facilitate negotiations.
The negotiations broke down, the FWC said, leading to industrial action in January 2019.
Company investigation results in dismissal
Mr Tracey and his wife had prepared the video in question on 3 September 2018 entitled “Hitler Parody EA Negotiations”.
On learning about the video, BP began an internal investigation, and interviewed Mr Tracey about it on 31 October 2018.
The FWC said that Mr Tracey admitted to sharing the video, but refused to identify who had created it.
Following the interview, Mr Tracey was stood down on full pay while the investigation was completed, by way of a letter outlining the allegations against him and that, if substantiated, it may seek to terminate his employment for breaching company policies.
The investigation ultimately found that Mr Tracey had breached company policy by sharing material that other employees of the company deemed offensive, and his employment was terminated on 18 January 2019, with four weeks’ pay in lieu of notice.
At the time, national secretary of the Australian Workers’ Union (AWU) Daniel Walton suggested the ruling was a mistake and that an appeal would likely follow.
“‘Hitler Downfall’ videos are a joke, but the decision to sack a worker over one is not,” he said.
“This is a long-serving, loyal employee who has lost his job because the Fair Work Commission is seemingly unfamiliar with a meme that’s over a decade old.”
Mr Walton said that he could “understand” a comparison could be drawn by someone unfamiliar with the meme, but insisted that comparing people to Nazis is “just not what this video means in 2019”.