MELBOURNE: Australia’s Federal Court on Friday tossed out a bid by BP Plc to fire a worker at its Australian refinery for mocking management online during tense wage talks using a well-known meme of Hitler.
The Federal Court rejected an appeal by BP against a ruling by the Fair Work Commission which found in February that the technician, Scott Tracey, had not been unfairly dismissed.
BP fired Tracey from its Kwinana refinery in January 2019 for breaching its code of conduct after he posted a video to a staff Facebook group using a widely used clip from the movie “Der Untergang (Downfall)”, showing Hitler ranting on the brink of losing World War II.
The video, which the company considered “highly offensive and inappropriate”, had captions showing Hitler as an unnamed BP manager enraged about workers rejecting a pay deal.
He posted the video on a Facebook page for BP’s refinery employees and shared it with some workmates.
Tracey launched an unfair dismissal case at the Fair Work Commission where the deputy president decided his dismissal was not unfair.
That decision was overturned by the full bench of the commission, which found the video was a joke, and therefore his dismissal was unfair.
“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 court cited the Fair Work Commission saying.
The court rejected BP’s argument that the commission had made a legal error in its finding.
The Australian Workers Union, which represented Tracey, welcomed the decision.
“Australian workers have always been able to take the piss out of their bosses, with their colleagues, in their own time. For BP management to spend so much time arguing otherwise reveals real arrogance,” AWU National Secretary Dan Walton said in a statement.
BP said it was reviewing the decision and considering next steps.