10 Mar 2022In 2018, a BP employee was sacked after sharing a Hitler meme on social media. The court case caused a media flurry, with journalists writing headlines such as “Hitler a joke court finds”. But behind all the commotion was a complex unfair dismissal case that dragged on for two years and cost the employer $200,000.
The case involved a BP refinery employee, Scott Tracey, who was fired for sharing a Hitler meme on social media that made fun of the company during negotiations for a new pay deal.
Bosses believed they were object of ridicule in Hitler meme
Mr Tracey’s wife had made the meme using a clip from the 2004 German movie Downfall, in which actor Bruno Ganz, playing the role of Hitler, rants and raves at his imminent defeat. The meme used English subtitles to parody the enterprise negotiations.
Mr Tracey posted the meme on a closed Facebook group of BP workers. However, his employer soon heard about the meme. They didn’t see the funny side and sacked him, saying they found it “highly offensive and inappropriate”.
Employee files unfair dismissal claim
Mr Tracey claimed unfair dismissal in accordance with section 394 of the Fair Work Act 2009. He argued that he was wrongly sacked, as he’d posted the Hitler meme outside work hours and only to a private Facebook group, not publicly.
In 2019 the Fair Work Commission (FWC) ruled in favour of BP, saying Mr Tracey had likened his bosses to Hitler and Nazis. (See Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113.)
Commissioners rule in employee’s favour and order him to be reinstated
In line with section 604 of the Fair Work Act, Mr Tracey appealed the decision, arguing to the Full Bench of the FWC that the meme was clearly meant to be humorous and didn’t name any of his bosses.
After watching the Hitler meme, the Fair Work commissioners described it as follows:
Hitler is assigned the role of an unnamed BP manager in charge of the bargaining strategy. He is informed that the employees have voted overwhelmingly to reject BP’s proposed enterprise agreement, and then falls into a rage about the failure of the company’s bargaining strategy and the continued resistance of employees.
The FWC Full Bench ruled the Hitler meme was satire and ordered BP to reinstate Mr Tracey.
In their ruling, the three commissioners noted that there are thousands of memes parodying the Hitler rant from Downfall. (See Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820.)
BP appeals FWC decision in Federal Court
In March 2020, BP appealed to the Federal Court, seeking a stay of the FWC decision. BP argued the Hitler meme was offensive and violated the company’s code of conduct, as it had been seen by other BP employees, which amounted to misconduct.
The Full Bench of the Federal Court ruled against BP, stating the meme did not liken BP bosses to Nazis, but satirised the bargaining process. (See BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89.)
In August, the Full Bench of the FWC awarded Mr Tracey $177,324 for lost salary and bonuses, less tax, along with $24,069 in superannuation. It also ordered BP to reinstate him. (See Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206.)
This case illustrates there can be a fine legal line when it comes to satire and humour. It also proved to be costly for both sides.
