Sacked reporter taking legal action over Anzac tweet dismissal

by Chloe Taylor21 May 2015
Scott McIntyre, the reporter sacked by SBS after he sent a series of tweets from his personal Twitter account on Anzac day, is reportedly taking his dismissal to the Fair Work Commission (FWC).

McIntyre’s application to the FWC is reportedly based on the grounds that his former employer breached the general protections provisions of the Fair Work Act when they terminated his employment.

According to reports, McIntyre will argue that the comments he made on Twitter represented a political opinion, which is allowed under the Fair Work Act.

HC spoke to Lucienne Gleeson, associate at PCC Lawyers, about the potential outcomes of the case.

“The matter will turn on whether SBS can show that it terminated Scott McIntyre for reasons other than a prohibited reason under the adverse action sections of the Fair Work Act,” Gleeson explained. “Even if his termination was for a number of reasons, and only one of these was a prohibited reason such as his political opinion, this will be fatal to SBS under section 360 of the Act.”

According to Gleeson, the case will be significant if it results in a hearing, as it will be representative of the continuously increasing attention being given to the issue of employees’ work lives versus their private lives – which she said has been being tested by employers in recent years.

“Although Mr McIntyre is a journalist, and it therefore might be argued that what he does publically in his private time has little distinction from his work, there are many other professions where the circumstances are quite different,” she said. “If an employee is found to be able to be terminated for holding or expressing their political opinions due to the nature of their work, this could impose significantly on the freedom of political communication which has in the past – or could be – implied into the Australian Constitution.”

McIntyre’s case will take the context of the circumstances into account in order to determine the factors to be considered by the tribunal in determining the matter.

“Adverse action matters – unlike unfair dismissal cases – can be much harder to succeed in, despite the reverse onus of proof that applies, because ultimately it is what was in the mind of the decision-maker who took the adverse action which is pivotal,” Gleeson told HC

She referred to the 2014 case of The Commonwealth Bank of Australia v Barker, which found that what influences decision makers in these circumstances is determined subjectively rather than by an objective test.

COMMENTS

  • by HR Dude 21/05/2015 11:13:09 AM

    This'll probably come down to how well they communicated their social media policy.

    It would be clear cut if his Twitter name was SBS specific.

  • by HR Dudess 21/05/2015 12:36:53 PM

    Media people always give their own political opinions during talk shows most times not offensively however this tweet was extremely offensive to me as I am sure it was to others. My father fought in the second world war. I believe SBS would have lost business if they had not terminated him, I for one would have turned away from that media source. Because you work in media does not make it a forum for your own political bias. I like to think I am intelligent however his remarks were in line with racist comments to me and freedom of speech does not extend to racist comments. It would be possible that there was the odd occasion when what he claims did happen however in minority as most Australians are not barbaric. We have serial killers but all Australians aren't serial killers and I can name the ones in my time. Before someone makes sweeping statements like he did they need to present fact or shut up. Have respect for the people whose lives were lost and continue to be lost fighting for your freedom. If you have nothing good to say, say nothing. I agree with HR Dude as to outcome.

  • by Veteran 21/05/2015 1:14:01 PM

    This is the reason we need courts.

    Whilst I understand and appreciate the comments of above, I don't think they're relevent. Did he breach the guidelines is the bottom line. Whether some or many people find it offensive is irrelevant and a separate issue. I find nagasaki offensive. But people justify it. It's traumatic to be there and see what we did. So sack all those who justify it? No. Not unless it breaches the policy. Argue with them? Sure!

    Whilst some diggers were excellent role models, most were probably just blokes doing their duty, and a proportion of them would have been bludgers, rapists, thieves ect, just like in real world australia then and now. The fact we are told that they were all " heroes" shows how stupid we are. Maybe failing to put qualifiers on the comments allows more responses from people who wouldn't care? A technique if you like?

    The interesting thing is that Anzac Day is now a religion and you know you can't spaeak against religion, just lok at the royal commission into child sex abuse and see that bad bad stuff really happened ....coz people DIDNT say contrary stuff!!! I don't want that for Anzac Day. Be proud of good and appreciate the sacrifice, but also keep eyes open and challange myths and bad stuff.

Most Read