2 March 2020

In a victory for freedom of speech, a Fair Work Commission appeal bench has ordered the reinstatement of a worker who made a Downfall parody about his employer’s EBA negotiations. At the time of the awful initial decision upholding the sacking, I made my own meme in response, explaining that a Downfall meme “suggests the subject is under intense pressure and refuses to accept reality as their position deteriorates and the humour comes from the absurd juxtaposition of Hitler’s downfall with a mundane situation. … If it literally suggests the subject is Hitlerish, the joke falls flat.” The worker’s lawyer incorporated this analysis into his appeal submissions: “the Downfall video genre involves an absurd juxtaposition between Hitler’s downfall and a contemporary mundane, commonplace or day-to-day matter not going to plan, and is a device to make a humorous point about the contemporary matter not going to plan; there would be no humour in the video genre if it constituted depicting a person as a Nazi or likening a person to a Nazi”. The FWC Full Bench accepted this and gave BP two weeks to reinstate the worker to his job.