Worker sacked over Downfall joke reinstated by Full Bench of Fair Work

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Leading employment lawyers Maurice Blackburn and the Australian Workers' Union have welcomed a decision by the Fair Work Commission to re-instate a Western Australian BP oil refinery technician sacked for sharing a popular parody video of the film Downfall.

The full bench of the Fair Work Commission today ordered the reinstatement of family breadwinner Scott Tracey, describing his sacking as "unjust and unreasonable because there was no valid reason".

Mr Tracey was dismissed in January 2019 after creating a parody video of the film Downfall during Enterprise Bargaining Agreement negotiations which lampooned the process.

"There is no doubt that the clip would be understood by the reasonable viewer as satirising BP's conduct during the enterprise agreement bargaining process at the Kwinana Refinery. That, by itself, did not make it offensive or inappropriate," the Full Bench ruled.

AWU National Secretary Daniel Walton said BP's attempt to sack Mr Tracey was "disingenuous".

"This is a meme that has been used in the context of sporting clubs, TV reality shows, international relations and everything in between," Mr Walton said.

"For BP to allege this had anything to do with actually comparing management to Nazis was obtuse at best, but more likely disingenuous.

"Workers should be able to joke around with their colleagues in their own time. The day that right is lost would be a very bleak day for Australia," he said.

AWU WA Branch Secretary Brad Gandy said Mr Tracey should never have been sacked over a joke.

"This decision is a victory for workers' rights in the digital era, a victory for common sense, and a victory for Aussie larrikinism," Mr Gandy said.

"How BP decided an employee could be terminated for a private joke amongst mates is beyond me, but I'm very grateful the Fair Work Commission has set things right today."

Maurice Blackburn Principal Lawyer Kamal Farouque said the full bench found Mr Tracey was not likening BP management with Hitler or the Nazis.

"This was a satirical video about enterprise bargaining. Scott was not calling BP management Hitler or comparing them to Nazis," Mr Farouque said.

"He was sharing a joke via a well-known meme, with his mates at work. It wasn't offensive or inappropriate. No one should lose their job over an issue like this."

 
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