An oil refinery worker who was sacked for creating a Downfall parody of his bosses has had his job reinstated, after the Fair Work Commission ruled the “memetic context” of the video meant it was unreasonable to find he was comparing them to Nazis.

The worker, a technician on a BP refinery in Western Australia, was originally sacked after he used an oft-parodied scene from the 2004 film by Oliver Hirschbiegel about the final days of Hitler and Nazi Germany to depict his bosses during a tense wage negotiation.

In September, he lost an unfair dismissal claim after the commission’s deputy president Melanie Binet sided with BP in finding the video was “inappropriate and offensive”.

But in a decision hailed by the Australian Workers Union as a victory for “workers rights in the digital era” and “Aussie larrikinism”, the full bench of the commission overturned the decision on appeal on Friday, finding the widespread use of the scene as a meme had the effect of “culturally dissociating” it from its original context.

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“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,” the commissioners found.

“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.”

The scene used in the video shows Hitler huddled inside his bunker with his top generals and is a powerful fictionalisation of the moment the Nazi leader realised the war was lost.

After the film’s release, it became a cultural touchstone of the internet age. On YouTube, hundreds of “Hitler rants” parodied everything from the iPad to the break-up of Oasis and Sarah Palin’s resignation as the governor of Alaska.

BP had argued the video “attributes to Hitler’s character” comments the refinery manager had made during the wage negotiations and Binet had sided with the company, saying she did not accept that “labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive”.

But the full bench found that even “in isolation from its memetic context” the worker’s parody did not compare his employers to Nazis or Hitler.

“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,” the judgement stated.

“What it does do is to compare, for satirical purposes, the position BP had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945.”

It likened the comparison to the idiom that “someone is like Napoleon at Waterloo”.

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“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,” it stated.

AWU national secretary Daniel Walton welcomed the ruling, saying employees should “be able to take the piss out of management”.



“This is a meme that has been used in the context of sporting clubs, TV reality shows, international relations and everything in between,” he 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 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.”