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BP Worker Sacked Over Hitler Video Loses Unfair Dismissal

BP worker sacked over Hitler video loses unfair dismissal

A BP worker sacked for posting a Hitler parody video on Facebook has lost his unfair dismissal claim.

The Fair Work Commission found that a reasonable person would consider the video “inappropriate and offensive”.

BP worker’s wife creates parody video

Scott Tracey started working for BP at its Kwinana refinery in Western Australia in 2012 as a Process Technician.

In September 2018, after more than a year of protracted and tense pay negotiations, Tracey’s wife created the video.

She called it ‘Hitler Parody EA Negotiations’.

As it turns out, Hitler parody videos are one of the most popular memes on the internet.

A screenshot of Ms Tracey’s Hitler Downfall meme video.

Users add their own subtitles

The meme generator allows users to add their own subtitles to a clip from the 2004 German film ‘Downfall’, about Adolf Hitler’s final hours.

The original clip shows Hitler responding in a highly agitated and aggressive manner to advice from his Generals.

However, the captions added by Ms Tracey for her video made reference to events associated with the EBA negotiations.

Mr Tracey consequently shared the video to a private Facebook group of friends and colleagues.

He also showed it to other workmates at BP using a company computer.

BP claimed video depicted executives as Nazis

When BP became aware of the video, it launched an investigation, which concluded that Mr Tracey had been:

“…involved in creating an offensive and inappropriate video depicting BP representatives involved in the current negotiations as Nazis.”

In her evidence during Mr Tracey’s unfair dismissal hearing, BP’s human resources partner Sharon Rudderham said:

“The video appeared to depict a number of BPRK employees as Nazi’s and referenced very specific information related to what was happening at BPRK at the time and the ongoing BPRK enterprise agreement negotiations.”

Worker said video ‘humorous’

However, Mr Tracey insisted the video did not identify BP or any individual, and that he did not intend to offend anyone with the video.

He described it as “humorous”.

BP didn’t buy his arguments, and as a result, sacked him for breaching company policies.

Fair Work Commission Deputy President Melanie Binet ruled in favour of BP, rejecting Mr Tracey’s application.

Ms Binet said she was “satisfied that when viewed in context that a reasonable person would consider the Hitler video inappropriate and offensive.”


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Sacking ‘ludicrous’

Australian Workers Union national secretary Daniel Walton described Mr Tracey’s sacking as “ludicrous”.

“Hitler Downfall videos are a joke, but the decision to sack a worker over one is not,” he said.

“If you said ‘bugger’ in front of your boss on a work site they would likely not bat an eyelid.

“However, if they’d never heard the term before and they looked up the literal meaning they might be appalled. 

“Hitler Downfall parody videos are not about comparing anyone to actual Nazis. 

“It’s about depicting a high-stress group conflict situation and overlaying details about a current event.”


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The lesson

Industrial advocate Miles Heffernan from Dismissals ‘R’ Us said the case is a reminder of the perils of social media.

“Your social media accounts are not private,” he said. “They are public and when you post something, you become a publisher, and your boss can subsequently use it against you.”

Mr Heffernan advised workers not to post anything about their current or former employer.

“Hitler parody videos are hilarious, but nevertheless, the employer didn’t think so in this case,” Mr Heffernan said.


UPDATE TO STORY

A full bench of the Fair Work Commission overturned the original decision on appeal, finding Commissioner Binet had mischaracterised the video.

It said the clip has been used thousands of times over more than a decade to create a satirical depiction of contemporary situations.

“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 said.

As a result, the full bench ordered BP to reinstate Mr Tracey and back-pay him his lost wages.

BP lost a subsequent appeal to the Federal Court, which also ordered BP to reinstate Mr Tracey and back-pay him his lost wages.


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