An employee who was sacked after making a video satirising his employer as Adolf Hitler has been ruled to have been unfairly dismissed.
Scott Tracey lost his unfair dismissal case against petrol company BP last year, but this week the Fair Work Commission upheld his appeal against that decision.
Tracey created the video in 2017 during enterprise agreement negotiations between the company and staff.
The video was created out of scenes from the 2004 movie Downfall, which has been used regularly on the Internet as a tool of satire for all sorts of different situations.
The Commission originally ruled last year that the video was offensive, with BP arguing that it likened the company and its management to Hitler.
"I do not accept that by labelling something as a parody is a 'get out of jail free card'," said deputy president Melanie Binet in the September decision.
"A racist joke is by name humour but is likely to offend a person of the nationality at which it is aimed."
But in the appeal decision this week, the Commission judged that the video was not depicting BP management as Nazis, but rather Tracey was poking fun at the situation they were in during the negotiations.
"The position might be different if the clip used from the Downfall film depicted Hitler or Nazis engaging in inhumane and criminal acts (as many other parts of the film do)," stated the full bench of the Commission.
"In such a case a comparison in terms of conduct or behaviour might be inferred and reasonably be regarded as offensive. But it does not."
The Commission ordered BP to rehire Tracey and pay him compensation for lost earnings.
The Australian Workers Union welcomed the appeal decision and stated the Downfall film has been used for internet memes for 15 years.
"Workers should be able to take the piss out of management with their colleagues in their own time. The day that right is lost would be a very bleak day for Australia," said AWU national secretary Daniel Walton.
"For BP to allege this had anything to do with actually comparing management to Nazis was obtuse at best, but more likely disingenuous."
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