Scott McIntyre free to challenge Anzac Day Twitter sacking after tribunal criticises SBS

Markus Mannheim

Informant editor

A soccer journalist sacked by SBS for criticising jingoistic Anzac Day celebrations will get his "day in court" after a tribunal rejected the broadcaster's bid to block his unfair dismissal case.

The judicial officer presiding over the hearing also reminded those who wanted to stymie Scott McIntyre's case that many Australians had died to protect "rights and freedoms" such as access to a fair legal hearing.

McIntyre was widely pilloried, including by Malcolm Turnbull, after he used Twitter on April 25 to describe Anzac Day as the "cultification of an imperialist invasion of a foreign nation".

"Wonder if the poorly read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered," he wrote.

McIntyre also commented on the "summary execution, widespread rape and theft committed by these 'brave' Anzacs" during the World Wars, and described the atomic bombing of Hiroshima and Nagasaki as history's largest "terrorist attacks".

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Scott McIntyre 

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Innocent children, on the way to school, murdered. Their shadows seared into the concrete of Hiroshima.

5:41 PM - 25 Apr 2015

Hundreds of social-media users, including several parliamentarians, demanded McIntyre be sacked.

Mr Turnbull, the then communications minister, drew the tweets to the broadcaster's attention, saying it was "difficult to think of more offensive or inappropriate comments".

SBS managing director Michael Ebeid terminated McIntyre's employment less than a day later, saying the reporter's on-air position had become untenable.

In May, the journalist's solicitors, Maurice Blackburn Lawyers, applied to set aside the sacking on the grounds that SBS had breached the Fair Work Act by discriminating against McIntyre's political opinions.

"The case is not about whether Mr McIntyre's opinions are correct or not," the legal firm said at the time.

"It will focus on whether the views expressed by Mr McIntyre constituted political opinion and whether SBS terminated his employment for expressing these views."

However, the solicitors overlooked the fact that political opinion is not protected under NSW law, where McIntyre was employed, rendering their application "doomed to fail".

The legal team then sought to file an unfair dismissal claim but SBS argued it was too late and opposed a request for an extension of time. A subsequent attempt at mediation also failed.

In his decision published on Thursday, Fair Work Commissioner Ian Cambridge said the "public controversy" surrounding the case had "understandably introduced an elevated level of tension between the parties".

He said the "unusual" case had exceptional circumstances, which warranted allowing McIntyre to lodge a claim even though the statutory deadline had passed.

"In simple terms, I believe that the [Fair Work] Act ... should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person's 'day in court'," Mr Cambridge wrote.

"It 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."

McIntyre's unfair dismissal case will be heard at a later date.

Read more: http://www.canberratimes.com.au/national/public-service/scott-mcintyre-free-to-challenge-anzac-day-twitter-sacking-after-tribunal-criticises-sbs-20151001-gjzhyu.html#ixzz3nM5fGQp3 
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