Scott McIntyre vs SBS will test employees’ right to be opinionated

Reporter Scott McIntyre lost his job with SBS following several controversial tweets on Anzac Day – but does the Fair Work Act protect the right to political expression? Dave Hunt/AAP

When Scott McIntyre tweeted his own opinions about the horrors of war on Anzac Day, he probably didn’t expect to be sacked from his job at SBS.

After all, we have plenty of examples in this country of journalists and commentators – Alan Jones, Andrew Bolt and Kyle Sandilands, to name just three – who make a living from expressing controversial views that often offend at least some section of our community.

McIntyre is now appealing his dismissal, on the grounds that his employer has breached the “general protections” for workplace rights 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.

Proving discrimination isn’t easy

On its face, the Fair Work Act protections against discriminatory treatment at work seem clear – but it has not always been easy to establish a successful claim.

Two notorious High Court cases stand in McIntyre’s path. One is the 2012 Board of Bendigo Regional Institute of Technical and Further Education v Barclay case. The other is the more recent 2014 decision on CFMEU v BHP Australia.

In both these cases, employees were seeking to use related “adverse action” provisions protecting employees’ rights to exercise their internationally recognised right to freedom of association by engaging in union activities (under section 347 of the Fair Work Act).

In both cases, the employees were punished for some activity related to their union membership.

CFMEU v BHP was the infamous “scab” case, where employees were dismissed for holding up placards naming others as “scabs” during industrial action.

In both the Barclay and BHP cases, the employers were successful in demonstrating that they had other, legitimate reasons for taking action against the employees.

In the BHP case, the court accepted the employer’s assertion that the disciplinary action was taken for the sole reason of enforcing a workplace civility policy.

McIntyre’s challenge

So for McIntyre to succeed in his section 351 case against SBS, his counsel will have to demolish any assertion by SBS that it was motivated by a legitimate reason (such as enforcing a workplace civility, or a “don’t offend the viewers” policy).

This case will be an interesting test of whether the general protections in the Fair Work Act do offer any safe haven for employees to maintain a personal and political identity, unrestrained by any obligation to defer to their employer’s interests.

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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