Recently we covered the sacking of SBS sports reporter, Scott McIntyre, for posting what were considered to be offensive tweets criticising Australian commemoration of Anzac Day.
We focused on the obligations many employees now have under workplace codes of conduct and social media policies. These rules are increasingly restricting the exercise of free speech – even in an employee’s private capacity or out of work hours.
McIntyre has now lodged a claim under the general protections provisions of the Fair Work Act (FW Act), arguing that his dismissal was unlawful as it was based on his expression of a “political opinion”.
This case raises a number of interesting and complex legal issues.
WHAT IS "POLITICAL OPINION"?
Section 351 of the FW Act prohibits an employer from taking adverse action (including dismissal) against an employee, because of the employee’s political opinion.
The term “political opinion” (or “political conviction”) has been interpreted in other Australian anti-discrimination laws to include:
•any belief or opinion concerning the nature and purpose of the State, the exercise of power by the State and its interactions with groups and individuals, and the distribution of economic and political power in society;[1]
•advocating changes to the law, for example lowering the age of consent for minors;[2] or
•opposing particular public policies such as affirmative action programs for women.[3]
However, an individual’s personal belief – such as that the Aboriginal flag should be displayed whenever indigenous people are involved in a public activity – has been found not to constitute political conviction under anti-discrimination laws.[4]
The Federal Court recently found that the Construction, Forestry, Mining and Energy Union had breached section 351 by taking disciplinary action against – and ultimately dismissing – a union official who was an active member of Socialist Alliance.
In the Court’s view, it was clear that this activity ‘constituted the holding and manifestation of a political opinion’ within the meaning of section 351.[5]
It is not quite so clear that Scott McIntyre’s Anzac Day tweets are covered by the protection of political opinion in section 351.
Another important issue for consideration in his claim will be whether there is any constraint on an employee’s right to express a political opinion in the workplace context.
DOES THE RIGHT TO POLITICAL OPINION TRUMP AN EMPLOYEE'S EMPLOYMENT OBLIGATIONS?
SBS based its dismissal of McIntyre on his having breached the organisation’s code of conduct and social media policy.
So does an employee’s right to express a political opinion override his or her obligations to comply with policy-based workplace rules, which are usually backed up by contractual provisions enabling an employer to dismiss for serious misconduct?
The short answer is yes: employers must ensure that employees are not treated adversely based on the protected grounds in section 351 (including political opinion), even when disciplining or dismissing an employee for alleged misconduct.
However, the case will likely turn on the meaning of the words “because of” in section 351: i.e. SBS may be able to argue that it did not dismiss McIntyre because of his political opinion, but rather because of his breach of the relevant workplace rules (including, allegedly, defiance of a direction to remove the offensive tweets).
This kind of argument has proved successful in other cases where employers have taken various forms of adverse action against employees related to their engaging in ‘industrial activity’ (also protected under Part 3-1 of the FW Act).
For example, the High Court last year found that BHP Coal had not breached Part 3-1 when it dismissed an employee for holding an “anti-scab” sign on a picket line. While this conduct was considered lawful industrial activity, a majority of the Court accepted that BHP had not been motivated by the conduct but instead by the employee’s disregard for applicable workplace policies.[6]
WHAT HAPPENS NEXT?
The claim will first be the subject of a conciliation conference in the Fair Work Commission (FWC).
If no settlement is reached, the parties can either agree to arbitration by the FWC – or McIntyre will need to pursue the claim in the Federal Circuit Court or the Federal Court.
The remedies he could obtain if the claim succeeds include reinstatement, compensation (which is uncapped in general protections cases), and/or the imposition of civil penalties on SBS of up to $51,000.
Interestingly, McIntyre’s lawyers are also reportedly arguing that his dismissal involved an absence of due process and therefore SBS breached its own code of conduct; and that his good work record should have been taken into account.
However, these matters are not relevant to his section 351 claim (they would be more relevant in an unfair dismissal claim).
[1] Croatian Brotherhood of WA (Inc v Yugoslav Clubs and Community Associations of WA (Inc) (1987) EOC 92-190.
[2] Thorne v R (1986) EOC 92-182.
[3] Oldham v Womens Information and Referral Exchange (1986) EOC 92-158.
[4] Bell & De Castella and Rob De Castella’s Smartsmart for Kids Limited [2013] ACAT 27.
[5] Sayed v CFMEU [2015] FCA 27.
[6] CFMEU v BHP Coal Pty Ltd (2014) 314 ALR 1, applying Board of Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500.
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