A Joke or An Insult? A Case of A Meme and An Unfair Dismissal

Published June 10, 2020 (last updated July 17, 2020) -

“Harsh, unjust or unreasonable”. Those three words are the key words by which a Fair Work Commissioner may find a dismissal unfair, and potentially order compensation for the employee, reinstatement, or both.

There is often a great deal riding on an unfair dismissal hearing, (the final step in the unfair dismissal process), as all other options are likely to have been exhausted. The process can be financially and emotionally draining for all involved.

While many employers may feel like they don’t want to back down in the face of an unfair dismissal claim – which may be understandable – wading into the murky realm of arbitration can pose considerable stress given the inherent uncertainty associated with litigation.

Although there are many examples, it is arguably the “Meme Case” that most clearly illustrates the inherent uncertainty.

The case is considered by many to set a precedent in respect to the acceptability of humour, satire and criticism in the workplace.

Before we begin, this article isn’t intended to be a criticism of the Commissioners involved, or the Commission itself but merely an illustrative example that shows why unfair dismissal cases are rarely black and white. Rather, they are different shades of grey.

Why Was The Employee Dismissed?

BP and workers at an oil refinery were going through an enterprise bargaining agreement negotiation. There was tension between employees and management.

In early 2019, One employee, a technician, decided to let some steam off by posting a video to a Facebook group made by BP employees for BP employees.

The technician decided to post one of the most famous meme videos (the parody of Hitler’s rant from the very serious 2004 German-language film, Downfall). The scene from the movie depicts Hitler, huddled with his generals inside his war bunker in Berlin, realising the war is lost as the Soviets close in on Berlin in the final days of the 2nd World War.

The meme goes like this: you take the video, and replace the original English-language subtitles so that Hitler is instead ranting about frivolous things – about Twitter going down, the newest Star Trek movie, email scams, even the meme itself.

Coming from a movie that is more than 15 years old, there have been an uncountable number of iterations of this meme. (Also, that means the employee was using a 15-year-old joke – which makes it worse as we later see the Fair Work Commission hearing having to explain the joke when coming to the decision).

However, instead of ranting about lost divisions and the incompetence of his generals, Hitler is subtitled as ranting about the BP wage negotiation with – you guessed it – Hitler as the employer.

When his bosses did find out about this video in the Facebook post, they dismissed him for serious misconduct on the basis he had “distributed material which is highly offensive and inappropriate. The technician then lodged an unfair dismissal claim against BP to the Fair Work Commission.

The First Hearing

Fast forward through conciliation; all options have failed and the case is set down for Hearing at the FWC in September 2019.

At the Hearing, BP alleged that the video was “offensive and inappropriate”, and that it likened company management to Nazis and Hitler. Using phrases and other information privy only to the employer and employees during the negotiations, BP alleged that by doing so the video further tightened the depiction of the management as Nazis.

In the other corner, the technician argued that the ‘humorous’ video was intended to “boost morale” during the tense negotiations.

In the decision, the Commissioner sided with the management in this case, saying that “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.

“[The technician] may well have been endeavouring to raise morale but did so by demeaning, undermining and denigrating the leaders in his organisation.

“Had a member of BP management team created a video portraying delegates and union officials in a similar manner for a management function I would anticipate it would have rightly caused uproar among the workforce and led to its creator’s swift removal from the organisation.”

Noting that the technician showed remorse, but refused to accept his conduct had caused offence, the commissioner held that the dismissal was not harsh, unjust and unreasonable.

The lawyer representing the technician described the commissioner’s finding in a dim light. Kamal Faroque told the Commission that, in the context of its use, is used to mock overreactions to regular situations, adding that BP’s argument that the video was portraying BP and management as Nazis was a  “manifest mischaracterisation of his conduct”, according to news.com.au.

The technician appealed the finding.

The Second Case

This appeal’s finding, coming around five months after the original finding, quashed the original.

The saying goes that you should never have to explain a joke. But that’s what the Commission essentially did.

“That the clip has been used thousands of times over a period of more than a decade for the purpose of creating, in an entirely imitative way, a satirical depiction of contemporary situations has had the result of culturally dissociating it from the import of the historical events portrayed in the film,” in a description that could be good enough for the relevant KnowYourMeme.com entry.

“After this period, any interest which remains in the clip will usually reside in the degree of inventiveness involved in successfully adapting the scene to fit some new situation.

“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 Fair Work Commission thus ordered that BP reinstate the technician, with continuity of service, and to compensate the worker for lost pay.

The Third Hearing

It was now BP’s turn to appeal, sending the case to the Federal Court.

On the 22nd of May 2020, almost eight months after the first hearing and 16 months since the technician was originally dismissed in January 2019, a verdict was reached.  The Appeal was dismissed.

What Does This All Mean?

Unfair Dismissals may be tricky, costly and time consuming. It is rarely clear cut.

Many cases go the way of the employee due to an employer having a “harsh, unreasonable or unjust” process, (or not even following a “fair process”) despite the Commission noting the reason for dismissal being valid.

However, this case was decided by a somewhat tricky, subjective definition of what’s insulting and what’s a joke.

Prevention is better than a cure. Employsure can help you set up your processes, policies and procedures, giving you greater confidence that you’re on the right track with your workplace relations.

Call us now on 1300 651 415.

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