Scott McIntyre v SBS: General Protections and Workplace Rights
Tuesday 26 May 2015 @ 12.16 p.m. | Industrial Law
Over Anzac Day last month, SBS Sports journalist Scott McIntyre was dismissed from his position as a result of his tweets. Now, Maurice Blackburn Cashman has filed a claim in the Fair Work Commission (on 18 May 2015) for unfair dismissal.
Background to the Case
On ANZAC Day eve, McIntyre used his Twitter account to share his views on Anzac Day's meaning. "The cultification of an imperialist invasion of a foreign nation that Australia had no quarrel with is against all ideals of modern society," he wrote. "Wonder if the poorly read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered." The posts upset many, but he had more to say, reflecting on, among other things, the "summary execution, widespread rape and theft" committed by Australian soldiers during the World Wars.
He was summarily dismissed from his employment the next day with SBS issuing a formal media release and apology.
Background to the Legal Claim
Maurice Blackburn will represent Scott McIntyre in a discrimination suit alleging McIntyre was dismissed by the SBS without a proper investigation. The claim alleges that SBS breached its policies, including its Code of Conduct, and did not follow due process.
The claim also furthers states that SBS breached the general protections contained in the Fair Work Act 2009 (Cth). The particular provision McIntyre is relying upon is section 351, which provides that:
"An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin."
Adverse action includes dismissal, as well as other forms of workplace discipline (such as demotion), and the Fair Work Act places the onus on the employer to prove that they were not motivated by an impermissible reason (covered under section 361). So it will be for SBS to demonstrate that it sacked McIntyre for a legitimate reason, not including his political opinions.
A similar case in 2013 found that public servant Michaela Banerji, who was sacked for criticising the government on Twitter, was not constitutionally protected by her right to freedom of political communication.
While there is no formal protection under the Australian Constitution, the High Court has recognised an implied right to freedom of political communication as a necessary element of representative democracy.
As the Conversation states:
"Once upon a time, long, long ago, and before social media all but obliterated any boundary between public and private lives, a judge in Australia said (in Australian Tramways’ Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35) that a person may wear, worship or believe whatever one chooses, in matters not affecting work.
Finding the balance between the employee’s rights and the employer’s interests is an old problem. It will be interesting to see how McIntyre’s case is resolved."
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