A statement of claim in the Federal Court alleges SBS director of sport Ken Shipp warned then-SBS soccer reporter Scott McIntyre that although he was unlikely to be sacked for a series of tweets he posted questioning the conduct of Australian troops in World War I, he could always be removed from the broadcaster in other ways — for example, through being made “redundant” through the efficiency review, then being conducted at the broadcaster.
The allegation, if true, implies SBS might have considered making McIntyre’s position redundant based purely on his conduct or political views. As it happened, McIntyre was sacked, rather than made redundant, after then-communications minister Malcolm Turnbull got involved.
SBS has yet to file a defence in this case. A spokesperson told Crikey:
“SBS’s position has not changed from when Mr McIntyre commenced his first legal action, which he didn’t proceed with. SBS will be defending these new proceedings and as this is a legal matter will not be making any further comment.”
After he was sacked, McIntyre refused all media requests. But his version of events on the evening of Anzac Day this year has been finally revealed through court documents filed on Monday.
Through his lawyer, Maurice Blackburn principal Josh Bornstein, McIntyre details a rapidly escalating sequence of events as his initial contact with SBS management over the outrage caused by the tweets was overshadowed by interventions from no less than federal communications minister Malcolm Turnbull.
“There was a definite change in dynamic after the intervention [by Turnbull],” Bornstein told Crikey yesterday. SBS’ original reaction, the lawyer says, was “dysfunctional” and “panicked”.
McIntyre’s statement of claim, viewable here, alleges that before a call from Turnbull to SBS managing director Michael Ebeid — allegedly occurring some time before 9.07pm — McIntyre had been given the impression he would not be immediately sacked.
SBS’ first contact with McIntyre about the tweets was at 7.43pm, when Shipp called McIntyre.
According to the statement of claim, McIntyre says he offered to put a disclaimer tweet up saying his views were his alone, but Shipp worried it would look as if SBS management had pressured McIntyre. Shipp then suggested McIntyre remove the tweets, but McIntyre said they’d already been widely distributed. So McIntyre offered to publish another tweet saying there were atrocities committed on both sides during World War I. Shipp allegedly said he would consider the suggestion.
Forty minutes later, Shipp sent McIntyre two text messages suggesting the wording of a clarification tweet McIntyre could post: “I sincerely apologise for the offence caused as a result of my words on this important occassion [sic]. I did not mean to cause upset and now see my comments were very insensitive.”
Four minutes later, Shipp called McIntyre and said the Twitter reaction was getting serious. It’s at this point McIntyre claims he first asked Shipp whether he would be sacked, but he claims Shipp denied this and said “No, there are other ways they can go about it. For example they could make you redundant as part of the efficiency review.” Shipp allegedly again said that McIntyre “should consider apologising”.
There was, according to the statement of claim, a further call from Shipp to McIntyre at 8.40pm, when the SBS executive again allegedly said McIntyre should consider apologising, and allegedly denied McIntyre would be sacked if he didn’t.
Malcolm Turnbull’s first public comments on McIntyre were made on Twitter shortly after 9pm. As Turnbull told Crikey earlier this year, he had personally alerted Ebeid to the comments. Asked whether he feared McIntyre’s freedom of speech had been impeded by the sacking, the now-Prime Minister answered: “McIntyre, as a private citizen, is entitled to express his political views, but in his capacity as a reporter employed by SBS he has to comply with, and face the consequences of ignoring, the SBS social media protocol (available online here), a number of provisions of which were breached by him with his offensive tweets.”
McIntyre was told he had been sacked in a phone call at 10.10am the day after his tweets. Shipp told him SBS managing director Michael Ebeid had terminated his employment immediately for “breach of contract”. McIntyre claims he was told his position had become “untenable”. These sentiments were delivered in writing an hour later at 11.19am, when McIntyre received an email saying he had refused to follow “reasonable directions” from Shipp to should delete the tweets and apologise. The termination email cited the SBS code of conduct, SBS corporate values and SBS social media guidelines. The email to McIntyre appears to have been sent only three minutes before a statement was sent to media about his sacking — Crikey received the press release about McIntyre from SBS corporate affairs at 11.22am that morning.
McIntyre’s unfair dismissal case rests on the assertion that, before his dismissal, he’d never been explicitly directed to delete or apologise for the tweets (the statement of claim alleges Shipp had “suggested” that to him). The case also rests on issues of procedural fairness. The statement of claim says that it was only in a letter dated three days later that SBS clearly laid out what SBS policies McIntyre had breached.
Maurice Blackburn is representing McIntyre on a no-win-no-fee basis. It has already done so through the Fair Work Commission, after SBS argued that the period of time to stage an unfair dismissal had lapsed. The Fair Work Commission granted an extension.
“SBS has been trying to stop this getting to court,” Bornstein said. “[Their] costs would be astronomical. We’re not charging Scott anything. If there’s a costs order we’ll get paid.” Despite the relatively political nature of the proceedings, it’s not expected to be an overly complex case. Bornstein said he expected the case would last two days in court.
Workplace relations experts, unaffiliated with either party, have told Crikey they’d be very surprised if the case weren’t settled before going to full trial. “It poses a reputational risk to SBS, which means the organisation will want to resolve this very quickly,” said M+K partner Andrew Douglas.
Since he was sacked, McIntyre has relocated overseas, and is looking for a similar position to the one he had at SBS. “They’re very few and far between,” Bornstein noted, adding that the soccer reporter has also been doing a bit of freelance work (he’s written for The Guardian, and for Four Four Two). “It’s been very traumatic for him and his family.”