A man who was fired by BP over a Downfall parody video is appealing to the full bench of the Fair Work Commission, saying they did not properly understand the long-running meme.
The oil refinery technician had helped make a video mocking his bosses during a “tense” period of pay negotiations, according to court documents.
He was fired after the video was discovered, and lodged a claim for unfair dismissal. Guardian Australia reported he lost his case in September, with commission deputy president Melanie Binet saying the video was “inappropriate and offensive” and there were valid grounds for his dismissal.
But the man’s lawyers have filed an appeal, arguing that Binet “mischaracterised” the video and misunderstood “the broader genre of Downfall video”.
The Downfall meme is a popular parody format where humorous captions are overlaid on footage from the 2004 film Downfall, which shows Adolf Hitler panicking and shouting at his generals.
The meme first came to prominence in 2008 and has been used for everything from reaction to the new iPad to Cristiano Ronaldo leaving Manchester United for Real Madrid to the Warringah election this year.
In this case, the video depicted BP bosses panicking about how negotiations were going. Titled “Hitler Parody EA Negotiations”, it included captions like “I offered the carrot, I tried using the stick … Don’t they know I’m in charge?” and “I made promises to London”.
After the worker shared the video in an employee Facebook group, he was investigated by BP and fired in January 2019. BP said he “distributed material which is highly offensive and inappropriate” and had breached the company code of conduct.
But the worker argued the video was not offensive and was intended to “boost morale”.
BP had argued that the video was “offensive and/or inappropriate” because it created a parallel between Hitler and Nazi officers and the BP management team.
Previous decisions of the commission found that calling an employer “a Nazi” was offensive.
Deputy president Binet said: “I do not accept that by labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive … I am satisfied that when viewed in context that a reasonable person would consider the Hitler video inappropriate and offensive.”
But in appeal documents filed to the commission, lawyer Kamal Farouque of Maurice Blackburn argued this was a “manifest mischaracterisation” of the video.
The submissions argue that Downfall videos do not mean to actually liken the subject to Hitler or Nazis.
“The Downfall video genre involves an absurd juxtaposition between Hitler’s downfall and a contemporary mundane, commonplace or day-to-day matter not going to plan,” the submissions said.
“The absurd juxtaposition is a device to make a humorous point about the contemporary matter not going to plan. There would be no humour in the Downfall video genre if it constituted calling, depicting, likening a person as a Nazi or imputing that the person has the characteristics of Hitler or the leaders of the Nazi party.”
Previously, BP had argued the video “attributes to Hitler’s character” comments the refinery manager had made during the negotiations.
“Hitler lists the proposals which [the company] have made during the negotiation process and expresses his fury at the workforce’s refusal to agree to the deal despite these concessions,” BP said in their submissions.
In September, Binet said the video had “the potential to undermine, demean and denigrate the BP senior management team amongst an audience which they were charged to lead”.
According to the ruling, the video was made by the man’s wife in September 2018, using the website captiongenerator.com.
Bruno Ganz, the actor who portrayed Hitler in Downfall, died in February this year at age 77.
