Sacking of soccer journalist Scott McIntyre is contestable, whatever justification SBS used

To recap, McIntyre used his Twitter account on April 25 to share his views on Anzac Day's meaning. "The cultification of an imperialist invasion of a foreign nation that Australia had no quarrel with is against all ideals of modern society," he wrote. "Wonder if the poorly read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered." The posts upset many, but he had more to say, reflecting on, among other things, the "summary execution, widespread rape and theft" committed by Australian soldiers during the World Wars.

A few hours later, SBS managing director Michael Ebeid and the portfolio minister, Malcolm Turnbull, expressed disapproval at McIntyre's "disrespectful" and "despicable" comments. Turnbull later confirmed he had drawn the tweets to Ebeid's attention, who then investigated them. "The management of SBS, however, not the government, is responsible for staffing decisions at SBS," Turnbull said. The next morning, Ebeid apologised for the tweets and announced McIntyre had been sacked, saying the reporter's comments had caused "his on-air position at SBS to become untenable". The tweets had also breached the broadcaster's code of conduct and social media policy, Ebeid said.

Yet SBS then muddied the matter considerably. It declared its staff code of conduct a confidential document that was not open to public scrutiny (despite citing the code publicly when it justified the sacking). To give an indication of just how bizarre this is, even Australia's domestic spy agency, ASIO, makes its code of conduct publicly available.

And then more confusion. SBS's sport director, Ken Schipp, told staff McIntyre was actually sacked because he refused an order to delete the offending tweets, rather than because he had breached the code.

The ensuing clamour descended into a dichotomous discussion of whether SBS had breached McIntyre's supposed "right" of freedom of speech. (If the case went to court, that would not be under examination.) Bradley Allen Love managing legal director John Wilson has a particular interest in limits imposed on public servants' private behaviour. He says that, whichever reason SBS relied on to sack McIntyre, the broadcaster appeared to be on shaky ground.

Wilson says there are two relevant legal principles. First, employees must comply with the "lawful and reasonable directions" of their employer. But when those directions affect an employee's out-of-work behaviour, "the reasonableness of the direction really comes into play", he says. And employers have very few legally permissible reasons to control their staff's private conduct. "The essential question there is whether the out-of-work conduct really does have significant and adverse effects in the workplace."

Ebeid said in his public statement that SBS staff "on and off air are encouraged to participate in social media; however, maintaining the integrity of the network and audience trust is vital. It is unfortunate that on this very important occasion ... McIntyre's comments have compromised both." Yet Wilson says that is far from clear, as evidenced by the strong support McIntyre received from many commentators. University of Newcastle history professor Philip Dwyer, for instance, largely backed the accuracy of McIntyre's comments about specific wartime incidents. "The response to McIntyre's tweets is a demonstration that the popular perception of Anzac is completely out of step with the historical reality – but his remarks are also timely," Dwyer wrote.

Nor, Wilson points out, were McIntyre's tweets unarguably linked to his workplace. "This bloke is a soccer journalist. He had nothing to do, so far as I'm aware, with SBS's coverage of Anzac Day ... Nor, in my view, would the reasonable observer believe his tweets were SBS's official view."

The second legal principle potentially involved is the implied duty of loyalty and fidelity in every employee's contract. This obliges an employee to serve their employer loyally. But Wilson says an employer would usually only argue that a breach of this duty had occurred if, say, their employee had helped a competitor or, in McIntyre's case, if he had worked in an area in which SBS espoused a particular policy view but publicly expressed views contrary to that policy. McIntyre's tweets almost certainly didn't.

The broadcaster's social media policy does warn staff they may be disciplined if their actions, even outside work, "could damage the reputation and integrity of SBS" or "affect your capacity to perform your duties in an effective manner". Nonetheless, it notes that sacking is reserved for the "most serious of cases".

So, considering all relevant principles, did the broadcaster have a solid basis on which to sack McIntyre? Wilson says only if the tweets seriously damaged either SBS or the relationship between SBS and McIntyre. "In my view, that's questionable ... SBS needs to be able to say how or why [McIntyre's] conduct outside work seriously damaged the reputation of SBS, or damaged SBS's interests, or that it was somehow incompatible with his duty as an employee.

"If, for example, he had come out and said 'paedophilia should be legalised', SBS might be able to argue that he really did seriously damage the employment relationship. Why? Because there is no question among reasonable people that such behaviour is morally reprehensible, and that it tarnishes an employer's reputation to be seen to employ a person that publicly advocates such a view. But in Scott McIntyre's case, what he said, as others have noted, is a view that a reasonable person could articulate. There is not one Anzac story, there is not one single immutable narrative."

Wilson says his personal view – and even Turnbull's view – of McIntyre's tweets is irrelevant. "I would have thought SBS's interest was to encourage or promote debate about controversial subjects, no matter how dearly one side of the debate might be advocated by the majority."

Ultimately, if McIntyre challenges his sacking, SBS may still win the political war even if it loses the legal battle. As the incident unfolded late last month, the government was finalising its decision on the broadcaster's future budget. I'm not suggesting Ebeid sacrificed McIntyre's job to appease Turnbull or secure more funding. But it's certainly true that standing by the journalist, while many of the country's conservative commentators (and even MPs) were demanding his scalp, would have worsened the already strained relationship between SBS and the Abbott government.

An industrial tribunal, of course, will pay no heed to SBS's political image problems. The same cannot be said of federal cabinet's expenditure review committee.

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