Australia’s industrial relations watchdog has ordered BP to reinstate and compensate a worker sacked for posting on Facebook a parody video of the second world war film Downfall, which the company alleged compared the UK oil company’s senior management to Nazis. 

The Fair Work Commission’s ruling on Friday is the latest in a series of employment law cases involving social media use in Australia, which have alarmed trade unions and raised tricky questions for companies’ interpretations on whether online behaviour is offensive. 

The commission’s decision overturns a lower tribunal’s rejection of the unnamed technician’s unfair dismissals claim, which concluded BP was justified in sacking them for posting a satirical video titled “Hitler parody EA Negotiations” on a private Facebook group. 

The video referred to industrial relations negotiations between the Australian Workers’ Union and BP’s negotiating team, which was led by Brett Swayn, manager of its Kwinana refinery in Western Australia until early 2018. 

BP alleged the video depicted company representatives as Nazis, in breach of its code of conduct. It sacked the technician, who had worked at the company for seven years.

The worker argued during his unfair dismissal case that the video was not intended to offend and was an attempt at humour to boost staff morale. 

The commission ruled the tribunal’s rejection of the worker’s unfair dismissal case was “unreasonable” and “unjust” because the video did not liken BP management to Adolf Hitler or Nazis by suggesting their conduct or behaviour could be “comparable in their inhumanity or criminality”.

The commission said the clip of Downfall, the Oliver Hirschbiegel film released in 2004, has been used thousands of times in a satirical manner for more than a decade.

“Anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving Hitler and Nazis,” ruled the commission. 

The ruling stated that any reasonable viewer of the clip would understand that it was satirising BP’s conduct during negotiations on a new pay deal with trade unions at the refinery. BP’s negotiating team, the commission added, could not be genuinely surprised that employees would be strongly critical of the company’s conduct during the course of bargaining.

The commission ordered BP to reinstate the worker within 14 days and pay compensation, noting that the claimant’s household family income fell 75 per cent when he was sacked. 

Alex Hutchens, partner at McCullough Robertson, a Brisbane-based law firm, said the case highlighted the complexity involved in balancing freedom of expression for employees, use of employer-provided IT equipment and reputational and workplace control for employers where personal and professional use of electronic devices is blurred. 

“This is particularly the case where private digital communications can easily be distributed beyond their originally intended audience,” he said. “Each case is fact-dependent and the broader employment relationship and performance are relevant to considerations of whether misuse of social media is in itself sufficient to warrant dismissal.” 

“We are reviewing the decision,” said a BP spokesperson of the Fair Work Commission’s ruling on Friday.

This year, Israel Folau negotiated a reported multimillion dollar legal settlement from Rugby Australia after it terminated his contract over homophobic comments posted online. 



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