A BP refinery worker sacked for mocking the company's approach to bargaining over pay through a popular Hitler meme has had a decisive...
A BP refinery worker sacked for mocking the company's approach to bargaining over pay through a popular Hitler meme has had a decisive win after the company took the case all the way to the full bench of the Federal Court.
Scott Tracey, who worked at a BP oil refinery near Perth, was fired in January 2019 after he posted a video to an employee Facebook group using a popular meme format, where humorous subtitles are overlaid on footage of Hitler screaming in his bunker in the 2004 film Downfall.
A still from one of a vast number of Hitler Downfall parodies, with actor Bruno Ganz in the lead role, on the internet.YOUTUBE
BP fired him on the basis he had "distributed material which is highly offensive and inappropriate" and defeated Mr Tracey's initial unfair dismissal claim when the Fair Work Commission found the video was "inappropriate and offensive" and likened his bosses to Nazis.
Mr Tracey won his job back on appeal, with the full bench of the commission finding that the video was clearly satirical and no reasonable person would see it as making a point about BP executives acting like Nazis.
"Rather, the video, for satirical purposes, compared the position BP had reached in the enterprise bargaining process to the situation confronting Hitler and the Nazi regime in April 1945," the court found.
In the movie, the parodied scene shows Hitler ranting at his generals in German as they tell him how dire his position has become. Mr Tracey's subtitles referred to what he saw as BP's weak bargaining position in pay negotiations that had been under way since 2017 under the title "Hitler Parody EA Negotiations not going the [company's] way".
The Downfall meme format is enormously popular online, if dated, with analysis by meme encyclopaedia Know Your Meme showing interest peaked around 2010.
On Friday the Federal Court dismissed BP's challenge to the decision backing Mr Tracey. BP had argued the commission had improperly preferred its own subjective view of the video over the original ruling upholding Mr Tracey's sacking.
But three Federal Court judges found the commission had not just made a subjective judgment but a legal one that a conclusion Mr Tracey's video had offensively compared his bosses to Nazis was "outside the boundaries of legal reasonableness".
Australian Workers Union secretary Daniel Walton, who represented Mr Tracey, said BP had forced him to endure two years of stresss about his livelihood.
"For BP to seriously allege Mr Tracey was actually comparing management to Nazis is embarrassing," Mr Walton said. "But to drag this out has been pigheaded, mean spirited, and foolish."
He said BP should apologise to Mr Tracey and its workforce for dragging out the dispute.
"Australian workers have always been able to take the piss out of their bosses, with their colleagues, in their own time," he said. "For BP management spend so much time arguing otherwise reveals real arrogance."
BP said it was reviewing the decision. "We remain committed to upholding our values and behaviours consistently across our company, including at offices, refineries, and retail sites," a company spokesman said.
In 2013 a Hong Kong equity trader won a $US1.86 million payout after a court ruled his bosses were "hypersensitive" for sacking him over a version of the meme.
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