Downfall for employee – Hitler parody a valid reason for dismissal

A famous scene from the film ‘Downfall’ has been the subject of an unfair dismissal application before the Fair Work Commission (FWC).

The stock footage, which has been an internet meme for more than 10 years, depicts Hitler receiving bad news from his generals. The original scene is in German however many parodies have been created by altering the subtitles to produce amusing outcomes.

The wife of the Applicant in the matter (Mr Tracey) used a caption generation website to create a ‘Downfall parody’ which related to negotiations regarding an enterprise agreement. The following summary of the video was provided by BP:

The video attributes to Hitler’s character comments which Mr Brett Swayn, BP Refinery Manager, made to the BPRK workforce during enterprise bargaining negotiations. In the video, Hitler is shown railing at his Nazi acolytes about the workforces’ refusal to accept the deal offered to them. Hitler lists the proposals which BPRK have made during the negotiation process and expresses his fury at the workforces’ refusal to agree to the deal despite these concessions. The video draws a parallel between Hitler and his officers, on the one hand, and Brett Swayn, and BPRK management, on the other.

Mr Tracey posted a link the video on a private Facebook group on 3 September 2018, subsequently accessing Facebook with a work computer to show colleagues. When alerted to the video, BP began an investigation.

Mr Tracey was called into a meeting on 31 October. The purpose of this meeting was to inform him that he would be formally interviewed the following day regarding the matter. Mr Tracey elected to bring his interview forward and the official interview commenced at 1pm 31 October. Following the interview, Mr Tracey was stood down on full pay until the investigation had been concluded. The following day, BP issued Mr Tracey with a stand down letter outlining the allegations against him. The allegations were that he:

  • Shared and distributed material which is highly offensive and inappropriate
  • Utilised another employee’s BP logon to share the material
  • Was involved in creating this material
  • Was aware of other/s involved in creating the material and are potentially covering up.

Mr Tracey provided a written response to the allegations in which he argued:

  • He had not intended to offend anyone
  • The Hitler Video was intended to be humourous and boost morale
  • He had satisfied himself that he was not in breach of company policy before he shared the video
  • The video did not specifically identify BP or any individual
  • It was shared on a private Facebook page and was not intended to be viewed by BP Management or those in the BP negotiation team
  • He removed the link as soon as he became aware that it had been viewed by someone outside of the Facebook Page and that it may have caused offence
  • His wife had created the video and that he had been reluctant to reveal this at the Initial Meeting because he didn’t want to dob on her or effect her future employment opportunities

Mr Tracey also asked his employer to take into account a number of matters including that:

  • He had a mental illness which affected his thought processes
  • He had an unblemished work record over 7 years employment
  • The code of conduct was unclear and vague

Deliberation by BP continued until 18 January when Mr Tracey attended a meeting to learn of the outcome of the investigation. It was at that point Mr Tracey was informed that his employment would be terminated.

Consideration by the Commission

When the matter came before the FWC, Deputy President Binet found in favour of BP. Her Honour summarised:

I am satisfied that Mr Tracey made available, shared and or distributed the Hitler Video. I find that in doing so he breached BP policies and that his conduct was destructive of the necessary trust and confidence that are an essential element of any employment relationship. 

The Commission ruled that all procedures were followed, the dismissal was not unfair and dismissed the application accordingly.

Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113