Australia: Mcintyre v SBS - social media dismissal: FWC gives green light for unlawful termination claim

In McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768 (1 October 2015), the Fair Work Commission (FWC) allowed an unlawful termination application brought by former sport reporter Scott McIntyre to proceed. McIntyre had abandoned an earlier general protections application after it was found it could not be pursued under the applicable state anti-discrimination law.

In this In Brief, we examine the interaction between the general protections and state anti-discrimination provisions which led to the abandonment of that claim; and the effect of this on a number of jurisdictional objections to the subsequent unlawful termination claim.


Earlier this year, SBS dismissed McIntyre following his posting of a series of Anzac Day 'tweets' considered to be offensive. In a previous In Brief (see here), we focused on the workplace obligations of employees in respect of their social media use.

Adverse action because of political opinion

Following his dismissal, McIntyre lodged a claim under the general protections provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), arguing a breach of section 351 of the FW Act. Under that section, an employer must not take adverse action against another person because of the person's 'political opinion'. McIntyre argued that his 'tweets' came within the concept of political opinion under section 351. In a subsequent In Brief, we examined the legal issues raised by this case (see here), noting that the scope of 'political opinion' as a protected attribute under s 351 of the FW Act and its interaction with organisational social media policies was untested.

Termination for a reason including political opinion

Following McIntrye's general protections claim failing to resolve at conciliation, but prior to a court hearing, McIntyre 'unequivocally abandoned' his section 351 application and commenced an unlawful termination application under section 773 of the FW Act.1

The reason for this was a realisation by McIntyre's solicitors that his general protections claim was 'doomed to fail' by virtue of the exempting operation of section 351(2)(a) of the FW Act. Under this provision, discrimination on the basis of any of the grounds set out in section 351(1) is not adverse action, where it is 'not unlawful under any anti-discrimination law in force in the place where the action is taken'. Under the anti-discrimination laws applying in New South Wales, where McIntyre's dismissal took place, discrimination on the basis of political opinion is not unlawful.2 Relevantly, the Anti-Discrimination Act 1977 (NSW) and the Australian Human Rights Commission Act 1986 (Cth) do not protect an employee against discrimination on the basis of political opinion.

Accordingly, McIntyre lodged an unlawful termination claim.


SBS objected to McIntrye's unlawful termination claim on two grounds.

Firstly, SBS argued that section 723 of the FW Act acted as a jurisdictional bar against McIntyre's unlawful termination application, because he remained technically entitled to make a general protections application with respect to his dismissal. Section 723 provides that a person must not bring an unlawful termination claim if he/she 'is entitled to make a general protections court application' in relation to the same conduct.

Commissioner Cambridge dealt with this objection by observing that unlawful termination applications under s 773 were 'only intended to be an extension of the protections to persons who are not covered by the general protections in relation to termination'.3 While different sections of the FW Act provided for different remedies, the legislation contained rules preventing an applicant from pursuing multiple applications and statutory remedies in relation to the same conduct.4

However, the Commissioner accepted that McIntyre was not attempting to seek multiple actions or remedies. The operation of section 351(2)(a) had the effect of extinguishing any potential general protections claim. He should not therefore be jurisdictionally barred from making an unlawful termination application.


Secondly, SBS argued that McIntyre's unlawful termination application was filed out of time. Under section 774 of the FW Act, an unlawful termination application must be made within 21 days after the employment is terminated. However, if exceptional circumstances exist, the Commission may grant an extension of time for the making of the application. SBS objected to the Commission granting McIntyre an extension of time on the basis that the 'manifest representative error' cited by him for the delay had not been properly established.

Cambridge C granted the extension of time. He was satisfied that there were valid reasons for the entire period of the delay relating to representative error. 'Exceptional circumstances' therefore existed to justify the extension.5

In allowing McIntyre's claim to proceed, Cambridge C stated that his conclusions were broadly drawn from a 'purposive interpretation' of the FW Act, 'cognisant that it is beneficial legislation'.6 He noted, in particular, that jurisdictional provisions such as s 723 should not be interpreted in such a way that would deprive an individual of access to a fair hearing and his or her 'day in court', in circumstances where an applicant was not seeking multiple proceedings or remedies contrary to the Act.7


Given the nature of the circumstances that surrounded McIntyre's dismissal, Cambridge C indicated that it was 'unremarkable' and 'unsurprising' that he had sought in his initial application to rely on a general protection against discrimination on the basis of political opinion.8

However, in the absence of uniform anti-discrimination laws applicable across all Australian jurisdictions, the jurisdictional issues raised in this matter highlight the importance of employers – and the lawyers who advise them – being fully cognisant of the scope of various state and territory anti-discrimination laws, and how they may operate to limit the general protections under the FW Act.

With respect to the protected attribute of 'political opinion' under the FW Act, all states and territories except New South Wales and South Australia have also legislated to prohibit discrimination on this ground, alternatively termed political 'affiliation', 'activity', 'belief' or 'conviction'. However, none of these terms have been defined with certainty by anti-discrimination tribunals or the courts. Cambridge C noted, in passing, the unique position of New South Wales and South Australia as two jurisdictions in which discrimination on the basis of religion was also not specifically unlawful.

Harking back to the unusual facts of the case, Commissioner Cambridge further observed that: '[i]t is perhaps sadly ironic that many members of the Australian Defence Force lost their lives in the earnest pursuit of the protection of rights and freedoms such as the access to a fair hearing which the applicant is entitled to obtain'.9 The Commissioner also expressed regret over the considerable 'public controversy' surrounding McIntyre's Anzac Day comments and the 'elevated level of tension' between the parties that had resulted.

This decision allows McIntyre to continue to pursue the substantive issues of his dismissal. If the matter proceeds to hearing and determination, it will shed light on the scope of protection against dismissal on the basis of political opinion under section 772(1)(f) of the FW Act, which will have implications for similar protections under the general protections provisions and anti-discrimination laws.

We will provide further updates on this intriguing case as developments arise.


1 [2015] FWC 6768, [12].

2 Ibid, [11].

3 Ibid, [38].

4 Ibid, [34].

5 Ibid, [41] and [44].

6 Ibid, [45].

7 Ibid, [45].

8 Ibid, [28]-[29].

9 Ibid, [46].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.