Employee who made Hitler meme awarded $200k

HRD investigates the lessons for employers from an unfair dismissal case involving a video made by a worker

Employee who made Hitler meme awarded $200k

A case that went to the Fair Work Commission (FWC) earlier this year has raised questions about the difference between something intended as a joke and inappropriate workplace behaviour.

The case involve a technician on a BP refinery in Western Australia, who was dismissed after he used a scene from the film Downfall about the final days of Adolf Hitler to depict his bosses during a tense wage negotiation.

In the meme, Hitler confronts his generals in his bunker while the subtitles are replaced with alternative dialogue.

The man took BP to the FWC for unfair dismissal and originally lost the case in September last year, after deputy president Melanie Binet sided with BP in finding the video was “inappropriate and offensive”.

The employee then appealed, insisting he had not intended to offend anyone and that the video was supposed to be “humorous”. He said that it did not identify BP or anyone specifically.

The decision was later overturned on appeal after the full bench of the FWC ruled the “memetic context” of the video meant it was unreasonable to find the man was comparing his bosses to Nazis.

Read more: Former TV director awarded $10K for unfair dismissal

In February, the FWC ordered the man be reinstated to his job at the Kwinana oil refinery and he was awarded $200,000 in compensation.

Ian Neil SC, who works with leading law firms around Australia, told HRD that at the end of the day the employer did nothing wrong.

“In this case, the employer came to a judgement that the FWC disagreed with. And that judgement was that the Hitler video was insulting, derogatory and offensive,” Neil told HRD.

“The lesson is that with cases such as these which are on the margins, employers have to do their best to make sound judgements. But there will always be a risk that the FWC comes to a different view.”

Neil said that in this case the employer had all the policies and rules in place that were required to ensure that employees behave in ways that were not offensive.

“They enforced those rules and policies - there was no doubt about any of that. But in the end the judgement looked at whether that video was offensive – the employer thought it was, the FWC thought it wasn’t.”

Even though the employer had the systems and rules in place, Neil said that going forward, organisations must be clear about what behaviour is or is not acceptable.

“And not just to have the guidelines and rules in place but to actually enforce them. The employer in that case had those rules in place and did enforce them. But if it did not its position would have been much more difficult.” 

Read more: Trainee who accused boss of ‘mansplaining’ loses unfair dismissal case

Another key point BP argued was that the employee should be paid $150,000, less than what he would have earned if he had not been dismissed.

BP wanted money to be deducted because the video was shared among colleagues, which the company said qualified as misconduct.

They also argued more money should be deducted as the worker could have found work during the trial.

However, the FWC concluded that there was no evidence to argue that the employee had not searched for a job.

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