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Full decision here.

Introduction

Having lost his unfair dismissal application before a single member of the Commission, the applicant sought leave to appeal this decision before a Full Bench of the FWC – and won reinstatement.

This is a history lesson on the many Hitler parodies that you may have seen over the past 10 years, and the origin of the “meme”. And not to mention, that sometimes a joke is just that, a joke.

Background

The applicant had been employed as a process technician from 16 January 2012.

The applicant’s employer was involved in a long running industrial dispute relating to the bargaining of a new enterprise agreement with the applicant’s union.

The application was dismissed effective from 18 January 2019, with four weeks’ pay in lieu of notice. His dismissal arose from a video which he prepared together with his wife, on 3 September 2018 entitled “Hitler Parody EA Negotiations”.

Parody videos and Memes (a history)

The video was prepared using a website called “Caption Generator”. This website contains a small collection of video clips with non-English dialogue and allows the user to add subtitles to create an alternate story or theme for the video. The most well-known of the videos is a clip from the German language movie Downfall, which portrays the last days of the Third Reich and is centred on events in Adolf Hitler’s bunker near the Reich Chancellery building in Berlin. The scene depicted in the clip shows Hitler breaking down when he learns that a counterattack against advancing Russian forces, which he had previously ordered SS Obergruppenfuhrer Felix Steiner to initiate, had not occurred and launching into an angry and bitter tirade in which he blames various persons for the situation into which he had led Germany. It marks Hitler’s final realisation that all his plans had come to nothing, that the complete defeat of Germany could not to be avoided and that Berlin would soon fall.

Parody videos of this scene from Downfall began not long after the film was released in 2004. Typically, they use subtitles to adapt the scene’s depiction of Hitler’s realisation of defeat to contemporary political, cultural or social issues. In many cases, the humorous effect is achieved by the juxtaposition of the grave and dramatic events depicted in the film and the relative banality of what is being discussed in the subtitles and the degree of inventiveness displayed in the adaptation of the scene to an entirely different context. There were already thousands of these parody videos on the internet by 2010 such that the use of the clip in the way described can be said to have become a meme. A “meme” – a term coined by the evolutionary biologist Richard Dawkins in the 1970s – is a cultural element, concept or behaviour which is passed from one individual to another by imitation and communication.

The applicant’s video

The subtitles added in the applicant’s version of the clip refer to the bargaining for the new agreement. In summary, it is apparent that Hitler is assigned the role of an unnamed manager in charge of the bargaining strategy. He is informed that the employees have voted overwhelmingly to reject the employer’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 applicant’s video appeared (as one of thousands of videos) on the Caption Generator website. It is reasonable to say that it could only be found on that website if one already knew it was there and used the browse function to search for it. On 3 September 2018, the applicant posted a link to the video on Facebook, but access to the video was confined to a restricted group of people – a closed group the members of which were all employees of the applicant’s worksite. That same day, while working the nightshift, the applicant showed the video to his workmates. He did this in two ways: first, by using the work computer of another employee to access his Facebook account and, second, by showing the video using his personal device.

The employer became aware of the video

Management became aware of the existence of the video (presumably by word of mouth from someone who had seen it) and commenced an investigation. On 31 October 2018, the applicant was required to attend a formal investigation meeting, at which he admitted that he had shared the video but beyond that declined to provide information. The following day he was, by letter, stood down on pay on the basis of the following allegations:

“It is alleged that you:

  • Have shared and distributed material which is highly offensive and inappropriate;
  • Utilised another employee’s BP logon to share the material;
  • Were involved in creating this material; and
  • Are aware of other/s involved in creating the material and are potentially covering up.”

The applicant’s remorse

After a number of further steps were taken in the process, the applicant emailed a letter to his employer, explaining that he had not intended to offend anyone; that the video was created by his wife, was intended to be humorous and boost employee morale and did not identify the employer or any individual; that it was posted on a private Facebook page and was not intended to be viewed by members of his employer’s management or negotiation team; and that he removed the link on the Facebook page once he became aware that it may have been viewed outside of the private group. He also said that he suffered from a mental illness which affected his thought processes and caused him to tend to impulsivity and poor judgment, and he had an unblemished work record of 7 years.

The dismissal

Following further investigation, the employer’s management (located external to the applicant’s worksite) dismissed the applicant for breaching the company’s code of conduct.

The original decision

The Deputy President, in dismissing the application:

“Notwithstanding that the…Facebook Group is a private group which only members of the…Facebook Group can access; the evidence is that many of the 2014 Agreement covered workforce are members of the…Facebook Group. While a member of the public would be unlikely to relate the video to the industrial events then occurring at [the employer], the members of the…Facebook Group were familiar with the negotiations and the identities of those involved and could easily draw parallels between the words attributed to Hitler and the Nazi generals via the captions and events which occurred during the negotiations”.

And further:

“Notwithstanding that the audience of the…Facebook Group was restricted, the very identity of that audience made the sharing and distribution of more significance than a larger audience with no relationship to the [the employer’s] worksite.”

Sense of humour – not

The Deputy President then gave consideration as to whether a reasonable person would consider the video to be offensive or inappropriate, and said:

“I do not accept that by labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive. A racist joke is by name humour but is likely to offend a person of the nationality at which it is aimed.

“Depending on the circumstances in which it occurs ‘poking fun’, ‘taking the mickey’ or ‘sending up’ might be disrespectful, rude, demeaning and/or offensive. For example ‘sending up’ a religious deity might be deeply offensive to some groups of people”.

Then citing:

“The FWC and its predecessors have previously considered cases in which an employee has made references, or likened their employer, to Hitler or the Nazi regime. In APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 it was held that carving the words “Welcome to hell” and etching a swastika into an ice block in protest of the conditions of work in a freezer room was insulting and offensive conduct (whether or not the business employed Jewish people or the employee intended to offend anyone). Such conduct was held to have been a valid reason for the relevant employee’s dismissal”.

And:

“In CPSU v Australian Broadcasting Corporation [2005] AIRC 737 SDP Drake held that calling an employer a ‘Nazi’ was ‘inappropriate and offensive’ even in the ‘context of a heated industrial meeting’”.

And…

“In Pitt v Woolworths (SA) Pty Ltd [2003] AIRC 673 an employee’s actions in calling his employers ‘Nazis’ was found to amount to a valid reason for his dismissal”.

Concluding:

“I am satisfied that when viewed in context that a reasonable person would consider the Hitler Video inappropriate and offensive”.

Appeal grounds and submissions

In paraphrasing the seven grounds for appeal, it was contended that the Deputy President did not appreciate that it was a joke – and nothing more.

Consideration (they do have a sense of humour?)

The Full Bench decide that the critical issue which the Deputy President had to determine was whether the conduct was of such a nature to justify dismissal. This required the making of an evaluative judgment on her part as to the character of the video’s content. Stating:

“We do not accept that it was reasonably open for the video to be characterised in the way it was by the Deputy President. Even considered in isolation from its memetic context, it is apparent that the video does not liken BP management to Hitler or Nazis in the sense of stating or suggesting that their conduct or behaviour was in some sense comparable in their inhumanity or criminality. What it does do is to compare, for satirical purposes, the position [the employer] had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945. 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); 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. By way of illustration, if it is said that someone is like Napoleon at Waterloo, this is obviously not to be understood as drawing a comparison between the person and the personality, behaviour, deeds or stature of Napoleon Bonaparte; rather, it is a stock way to say that the person is facing a final, career-ending defeat”.

Reinforcing (that they “get-it”):

“The position becomes even clearer when one considers the context of the development of the use of the Downfall clip into a meme. That the clip has been used thousands of times over a period of more than a decade for the purpose of creating, in an entirely imitative way, a satirical depiction of contemporary situations has had the result of culturally dissociating it from the import of the historical events portrayed in the film. After this period, any interest which remains in the clip will usually reside in the degree of inventiveness involved in successfully adapting the scene to fit some new situation. 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”.

Concluding

“For these reasons, we consider that it was not reasonably open to the Deputy President to find that…the dismissal…constituted a valid reason for dismissal. The allegation was premised on the proposition that the video was offensive and inappropriate because it compared [the employer’s] negotiating team to Hitler and Nazis – a proposition which we consider to be unsustainable…”

The applicant was reinstated to his former position, with the Full Bench reserving its decision on the amount of money to be afforded to the applicant considering deductions for any alternate employment he may have undertaken and a discount for misconduct.

Commentary

Whilst I recognise that the depiction of Hitler may still be a very “raw” subject to those who suffered under the Nazi regime; I have seen these videos (mainly in the context of AFL controversies) and find them both amusing and clever. In explaining the context (and long history) of the parody videos, the Full Bench showed common sense. Also, the video probably acted in the employer’s favour by instilling a sense of humour into a tense industrial standoff.

And let’s not forget the late great Charlie Chaplin, depiction of Hitler in the “Great Dictator”. Admittedly, before my time…

Have a laugh and have a great day!