Hitler Parody Video Not Grounds for Dismissal: FWC Full Bench

A Full Bench of the Fair Work Commission (FWC) has overturned an earlier ruling relating to an employee dismissed by BP Refinery (Kwinana) Pty Ltd over a Hitler parody video. 

Background

In September of 2019, Deputy President Binet of the FWC rejected the worker’s unfair dismissal claim after finding there was a valid reason for the dismissal based on his conduct in preparing, with his wife, a video entitled ‘Hitler Parody EA Negotiations’.  The worker, Mr Tacey, had used a website called ‘Caption Generator’ to prepare the video.  The video’s creation occurred in the context of fractured enterprise bargaining negotiations and protected industrial action which caused significant tension between management and workers at the Kwinana refinery where Mr Tacey worked.  The video had been characterised by BP in dismissing Mr Tacey as depicting BP representatives involved in the bargaining process as Nazis. Deputy President Binet found in the first instance that the effect of the video was to “demean, denigrate and undermine the standing of senior BP management”.  The Deputy President determined that, when viewed in context, a reasonable person would consider the video inappropriate and offensive. The Deputy President also found Mr Tacey’s conduct relating to the video breached the employer’s code of conduct and information protection policy.

What the Full Bench found

The Full Bench did not accept that it was reasonably open for the Deputy President to characterise the video in the manner she had, finding that it was 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 position becomes even clearer when one considers the context of the development of the use of the Downfall clip into a meme. 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. After this period, any interest which remains in the clip will usually reside in the degree of inventiveness involved in successfully adapting the scene to fit some new situation. 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.

The Full Bench proceeded to re-determine Mr Tacey’s unfair dismisssal application and ordered that he be reinstated to his former position within 14 days.

Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820

You can also read our earlier article following DP Binet’s decision here.