Worker sacked over mocking boss with Adolf Hitler meme

An example of the 'Downfall' meme. Photo / Supplied

A man is fighting for his right to jokingly mock his employer with a Hitler meme, saying he was "taking the mickey".

The former employee of BP has appealed the Fair Work Commission's decision that his sacking was "not harsh, unjust or unreasonable", after he earlier lodged an unfair dismissal claim this year.

Scott Tracey was sacked after his employer became aware of a video he shared in a private Facebook group, where he used a meme with a likeness of Hitler to mock the oil company's bosses.

The Downfall meme uses the pivotal scene in the 2004 German-language film, where a panicked and incensed Hitler character realises he is going to lose the war, lashing out at his subjects. New subtitles are superimposed onto images or videos from the film.

In its decision handed down in September, the Fair Work Commission upheld BP's argument the meme was "objectively offensive" and demeaning to the company, saying it likened senior management staff to Hitler, Nazis and murderers.

BP's right to sack Tracey, who had worked for the company for seven years, was upheld by the Fair Work Commission.

But Tracey appealed the decision, represented by Maurice Blackburn principal lawyer Kamal Farouque, who yesterday argued for the sacked worker on behalf of the Australian Worker's Union. He said the Fair Work Commission's acceptance that sharing the meme was the same as depicting the company as Nazis was a "manifest mischaracterisation of his conduct".

Farouque told the commission the meme was used, in the context of the internet, to describe an over-reaction to an otherwise regular situation, according to reporting by The Australian Financial Review.

The lawyer representing BP, Heather Millar, said no one from the company's management had ever seen the meme before sacking Tracey. She dismissed Tracey's defence as "semantics", AFR reported.

She disagreed with the argument the meme could be understood more widely as a "parody", saying in some environments it would be widely considered "offensive".

"To say it's not depicting someone as a Nazi is a very semantic argument," she told the hearing.

BP's managing director, Brett Swayn, who was depicted as a parody character in the video, was said to have found the video offensive — but he was not called as a witness.

News.com.au understands eight people in the private group had viewed the video.

In the September decision, Fair Work commission deputy president Melanie Binet dismissed Tracey's original claims he was "taking the mickey" and trying to "use absurdity to make a light point".

Binet compared the case to previous cases, where a man had carved a swastika, and the words, "Welcome to hell" into an ice block, as part of a protest for having to work inside in a freezer. That man had been dismissed from his job.

But in appealing the decision, Farouque argued the commission had erred in its decision, in both whether the meme itself was worth sacking someone over, and whether the sacking was overly harsh.

The final judgment for Tracey's appeal has been delayed.

News.com.au has contacted Maurice Blackburn for a comment on the case.