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 ātenseā 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 āinappropriate and offensiveā and there were valid grounds for his dismissal.
But the manās lawyers have filed an appeal, arguing that Binet āmischaracterisedā the video and misunderstood āthe broader genre of Downfall videoā.
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 āHitler Parody EA Negotiationsā, it included captions like āI offered the carrot, I tried using the stick … Donāt they know Iām in charge?ā and āI made promises to Londonā.
After the worker shared the video in an employee Facebook group, he was investigated by BP and fired in January 2019. BP said he ādistributed material which is highly offensive and inappropriateā and had breached the company code of conduct.
But the worker argued the video was not offensive and was intended to āboost moraleā.
BP had argued that the video was āoffensive and/or inappropriateā 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 āa Naziā was offensive.
Deputy president Binet said: āI do not accept that by labelling something as a parody is a āget out of jail free cardā 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.ā
But in appeal documents filed to the commission, lawyer Kamal Farouque of Maurice Blackburn argued this was a āmanifest mischaracterisationā of the video.
The submissions argue that Downfall videos do not mean to actually liken the subject to Hitler or Nazis.
āThe Downfall video genre involves an absurd juxtaposition between Hitlerās downfall and a contemporary mundane, commonplace or day-to-day matter not going to plan,ā the submissions said.
āThe 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.ā
Previously, BP had argued the video āattributes to Hitlerās characterā comments the refinery manager had made during the negotiations.
āHitler lists the proposals which [the company] have made during the negotiation process and expresses his fury at the workforceās refusal to agree to the deal despite these concessions,ā BP said in their submissions.
In September, Binet said the video had āthe potential to undermine, demean and denigrate the BP senior management team amongst an audience which they were charged to leadā.
According to the ruling, the video was made by the manās 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.