Lawyers for an SBS reporter sacked over a series of tweets will argue his dismissal was unlawful and occurred only after Malcolm Turnbull personally intervened in the case.
Lawyers for Scott McIntyre - who has previously canvassed his intention to sue the broadcaster - say he he has suffered loss of income, damage to reputation, humiliation, distress and anxiety as a result of his high-profile sacking.
McIntyre posted a series of tweets in April in which he referred to some Australians commemorating Anzac Day as "poorly-read, largely white, nationalist drinker and gamblers." He also said the "largest single-day terrorist attacks in history" had been committed by Australia and its allies in Hiroshima and Nagasaki.
Documents filed in the federal court by Josh Bornstein from Maurice Blackburn Lawyers claim SBS management encouraged McIntyre to only "consider" apologising for the tweets, but then sacked him after a late-night phone call from the then communications minister Malcolm Turnbull.
McIntyre's lawyers will argue criticisms made by conservative figures including the Liberal MP Jamie Briggs and pollster Mark Textor were influential in drawing Mr Turnbull to the tweets and contributing to McIntyre's eventual dismissal.
In a statement on April 26 announcing McIntyre's dismissal, SBS managing director Michael Ebeid and director of sport Ken Shipp said the tweets had breached the broadcaster's code of conduct.
"Mr McIntyre's actions have breached the SBS code of conduct and social media policy and as a result, SBS has taken decisive action to terminate Mr McIntyre's position at SBS, with immediate effect," the statement said.
But court documents filed for McIntyre allege that "at no time prior to the communication of the dismissal" did SBS give any direction to McIntyre to delete the tweets, give any direction to apologise for the tweets or make any allegation that he had breached the code, corporate values or social media guidelines.
McIntyre's lawyers say his tweets were an expression of his political opinion and sacking him for publishing them constitutes unfair dismissal.
Lawyers will argue that the SBS terminated McIntyre's employment, in part, "to bring an end the political controversy" that occurred online on Anzac Day. They also claim SBS made no official finding against McIntyre before sacking him and denied him a fair hearing prior to dismissal.
The tweets
The cultification of an imperialist invasion of a foreign nation that Australia had no quarrel with is against all ideals of modern society.— Scott McIntyre (@mcintinhos)
April 25, 2015
Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered.— Scott McIntyre (@mcintinhos)
April 25, 2015
Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan.— Scott McIntyre (@mcintinhos)
April 25, 2015
Not forgetting that the largest single-day terrorist attacks in history were committed by this nation & their allies in Hiroshima & Nagasaki— Scott McIntyre (@mcintinhos)
April 25, 2015
Innocent children, on the way to school, murdered. Their shadows seared into the concrete of Hiroshima. pic.twitter.com/DQOGXiKxEb— Scott McIntyre (@mcintinhos)
April 25, 2015
Three phone calls
According to his account of events, McIntyre received his first phone call from Mr Shipp at approximately 7:43pm on Anzac Day.
The court documents allege McIntyre offered to publish a disclaimer to point out that his personal views were not attributable to the SBS and note that atrocities were committed on both sides.
He claims Mr Shipp rejected the first idea because it would look as though management had pressured him. Mr Shipp is said to have considered the second idea and suggested the tweets be deleted.
A second telephone call was allegedly made at 8:24pm. McIntyre claims Mr Shipp referred to criticism online made by conservative figures and said "things were getting serious."
McIntyre's statement of claim alleges when he asked if he would be sacked, Mr Shipp said no but noted he could be dismissed in other ways, specifically through an efficiency review. Mr Shipp suggested McIntyre "should consider apologising."
The third call was allegedly made at 8:40pm. Court documents claim Mr Shipp told McIntyre that he should consider apologising and again denied he would be sacked .
McIntyre claims he resisted apologising, insisting his comments were factually accurate. SBS will have the opportunity to put forward its response to the claim when it files its defence.
Malcolm Turnbull intervenes
Court documents claim Mr Turnbull personally phoned Mr Ebeid, the SBS managing director, shortly after 9pm.
Shortly after, Mr Ebeid tweeted that McIntyre's comments were disrespectful and did not belong to the organisation.
Comments from @mcintinhos are his own, disrespectful and not at all the views of @SBS. We remember and commemorate our ANZACs.— Michael Ebeid (@michaelebeid)
April 25, 2015
This was retweeted by Mr Turnbull, who had also published his own criticism of McIntyre's tweets.
Difficult to think of more offensive or inappropriate comments than those by @mcintinhos. Despicable remarks which deserve to be condemned.— Malcolm Turnbull (@TurnbullMalcolm)
April 25, 2015
Mr Turnbull has previously confirmed he contacted the head of the SBS about the matter.
A spokeswoman for the Prime Minister declined to comment on Tuesday given the matter is now before the court.
The dismissal
The next morning, Mr Shipp is alleged to have told McIntyre over the phone that the managing director was terminating his employment for a "breach of contract."
A subsequent email said McIntyre had refused to follow "reasonable directions" to apologise and delete the tweets.
A spokeswoman for the broadcaster said: "SBS's position had 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 a legal matter will not be making any further comment."
The matter has been set down for a first directions hearing on November 6.
