By David Bates

During my last appearance on Peter’s Switzer show on the Sky News Business Channel, Peter and I discussed the unfortunate case of Scott McIntyre. McIntyre, you may recall, was until quite recently a well-known sports reporter on the (partially) publicly-funded SBS television network.

McIntyre was dismissed by SBS after he posted a series of rather insensitive tweets on his Twitter account over the ANZAC Day weekend.

In one post he wrote: “Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered”.

In another he posted: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan”. Oh dear.

SBS responded rather swiftly, with managing director Michael Ebeid justifying McIntyre’s dismissal by noting “It’s not tenable to remain on air if your audience doesn’t respect or trust you.”

During my conversation with Peter on the show, I mentioned McIntyre could now join the tens of thousands of other Australian employees who lodge dismissal-related claims against their former employer. Well, we’ve now learned that this is exactly what McIntyre (via his lawyers at Maurice Blackburn) has done.

Interestingly, though not surprising, his claim is based on the ‘adverse action’ provisions of the Fair Work Act rather than the more widely-understood ‘unfair dismissal’ section that causes havoc and sleepless nights for around 20,000 (and rising) Australian employers each year.

This means McIntyre isn’t arguing that his dismissal by SBS was ‘unfair’. Instead, he’s saying that his public expression of his political opinions is a protected ‘workplace right’, and that SBS’s decision to terminate his employment amounts to adverse action taken against him because of his exercise of that right.

You might be wondering why Mcintyre didn’t just lodge a more straightforward ‘unfair dismissal’ claim against SBS? Well, there are two very good reasons why his lawyers have steered him down the ‘adverse action’ path.

Firstly, claims of adverse action involve a reversal of the usual ‘onus of proof’.’ If McIntyre had lodged an ‘unfair dismissal’ claim, it would have been up to him to prove the dismissal was unfair. However, by lodging an adverse action claim, it will now be SBS’s responsibility to prove they did not engage in unlawful conduct.

Secondly, in stark contrast to unfair dismissal claims, there is no cap on the compensation that can be awarded to an employee who has been subjected to ‘adverse action’.

Statistics published by the Fair Work Commission tell us this whole matter will quite likely be ‘settled’ by SBS agreeing to pay Mr McIntyre an undisclosed sum of ‘go-away’ money. Only time will tell.