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FWC Upholds Dismissal For Tasteless Hitler Parody

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September 5 2019

By Nicholas Hartman

An oil refinery worker who was sacked for making a parody video featuring Adolf Hitler has lost his unfair dismissal claim.

After the company had made an application to terminate an expired pay agreement after a 16 month negotiation, the worker with the help of his wife, decided to make the video.

The worker used a 15-year-old meme that uses a scene of Hitler ranting from the German-language film Downfall, to depict his bosses during the negotiations.

Before the Fair Work Commission, the worker argued that that video was meant to “boost morale” for the team, and that it would be “unreasonable” to interpret the video as literally communicating that his bosses were Nazis.

The worker, defining what a parody is, told the FWC that the video “assumes and pre-supposes that what is being conveyed is humour” and “its purpose by definition is [to] use absurdity to make a light point”.

However, in ruling against the worker, FWC deputy president Melanie Binet said that saying something was a parody was not a “get out of jail free card”.

“Labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive,” the deputy president said.

“A racist joke is by name humour but is likely to offend a person of the nationality at which it is aimed,” she said in her judgment. “Depending on the circumstances in which it occurs ‘poking fun’, ‘taking the mickey’ or ‘sending up’ might be disrespectful, rude, demeaning and/or offensive.

“For example, ‘sending up’ a religious deity might be deeply offensive to some groups of people.”

The video made by the worker was shared in a closed Facebook group with other employees of the oil refinery.

The worker had been summarily dismissed after posting the video in the Facebook group.

The worker argued that the video was meant “to be a humorous parody of discussions between members of the BP senior management team participating in enterprise agreement negotiations”, and not aimed at anyone in particular.

However, the employer argued that the video clearly drew parallels between management and Hitler.

“In the video, Hitler is shown railing at his Nazi acolytes about the workforces’ refusal to accept the deal offered to them,” the employer wrote in its application to the FWC.

“Hitler lists the proposals which [the company] have made during the negotiation process and expresses his fury at the workforces’ refusal to agree to the deal despite these concessions.

“The video draws a parallel between Hitler and his officers, on the one hand, and [the refinery manager] on the other.”

In her summary, the deputy president said “In all the circumstances, and taking into account the heavy emotional and financial impact of the dismissal on [the worker] and his family, and taking into account the payment in lieu of notice, I am satisfied that his dismissal was not harsh, unjust and unreasonable.”