Uncomfortable truths

From a personal perspective, it seems as if it is only in the last fifteen years that Anzac Day has become quite commercialized and nationalistic. That doesn't excuse McIntyre's crude characterisation of the people who now commemorate the day. Even if you don't particularly respect something, you can respect that your fellow citizens place value in it and that some of them devote the day to mourning the loss of their ancestors who died during the war. In this sense, the deliberate timing of McIntyre's tweets was a touch unkind.

All nations need some type of founding myth or idea to keep themselves together. In this context, it seems as if the Anzacs have assumed greater importance in recent times. This might be a reaction to a more competitive and globalized economy and a diversified community. It may also be a function of the greater distance in time that now exists between modern Australia and the Australians who actually endured the hardship of war.

We are a free society and the role of the Anzacs, or anybody else for that matter, should not be accepted without question. This is why the response of the conservative right is again disappointing. They appear unashamedly selective on free speech issues. The irony of Andrew Bolt failing to defend free speech has not gone unnoticed in the media storm.

Yet, more importantly, both Turnbull's role in McIntyre's sacking and the treatment of the latter's contractual rights as an employee are deeply concerning. Why should the Minister for Communications involve himself in a matter like this? If Turnbull had not got involved it is likely that while there may still have been a twitter-storm, McIntyre would not have been sacked so quickly.

While SBS states that McIntyre was sacked for refusing to remove the offensive tweets, the management of SBS seems to have acted reflexively in sacking him. One would think that though his comments probably breached the SBS Social Media Protocol, and presumably then his employment contract, there is a sensible argument to be made that the breach was not so substantial as to warrant termination of the contract. At the very least, the ordinary principles of contract law stipulate that the party who alleges a breach of contract must give the other side sometime to respond or remedy. Given the speed of the sacking this does not appear to have happened.

The SBS Social Media Protocol provides:

While SBS employees have the right to make public comment and to enter into public debate in their personal capacity, it is important to ensure that SBS is not brought into disrepute. Individuals should consider how their posts will be perceived by the community, taking into account the standards which apply to their work.

It is worth noting that the Protocol does not say that employees should only make comments that pertain to their employment. The Protocol does say that comments should not bring SBS into disrepute. McIntyre's tweets certainly enraged many people. However, some of what he said is actually true. That begs the question as to whether the rule on disrepute applies if an employee says something that is true, albeit a bit exaggerated, but very unpopular.

The Protocol also provides:

Disciplinary action may be taken whenever you behave in an inappropriate matter that amounts to a breach of your employment obligations. This includes situations where your actions could damage the reputation and integrity of SBS … [and] your actions in your private life affect your capacity to perform your duties in an effective manner.

The inclusion of the term 'Disciplinary action' suggests that there should at least be a reasonable process to determine whether a breach has occurred.

The Freedoms Commissioner, Tim Wilson, has weighed in by describing McIntyre's tweets as repugnant and supporting his sacking. Wilson notes that McIntyre was offered the option of acknowledging that his conduct was offensive, but that he was fired for refusing that offer and other alternatives.