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.

BACKGROUND

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.

ENTITLEMENT TO PURSUE GENERAL PROTECTIONS 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.

EXTENSION OF TIME

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

THE LESSON? KNOW YOUR ANTI-DISCRIMINATION LAWS!

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.

Footnotes

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.

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