A dispute about the extent to which an employer can sanction an employee for the content of their personal social media posts made outside work hours has been settled on the eve of hearing in the Federal Court. This provides a useful opportunity to reflect upon two matters:
- The impact of dispute settlement on the development and clarification of the law; and
- The persistence of last minute settlement in litigated matters.
Brave and innovative thinking is needed to address both of these issues.
On ANZAC Day 25th April 2015 Scott McIntyre published four tweets that expressed his personal opinions about ANZAC soldiers’ war crimes during WW2. The tweets were noticed by some commentators, and there was wide condemnation including from federal government ministers and Mr McIntyre’s employer, SBS, who terminated his employment 12 hours after his tweets. One month later Scott McIntyre lodged an unfair dismissal claim with Fair Work Australia. His employer argued that McIntyre’s employment had been terminated because he had breached the network’s social media policy by refusing (upon request by his employer) to “delete a series of inflammatory tweets and publicly apologise.” If the matter had gone to hearing, as it was scheduled to on 11 April 2016, some interesting legal questions about whether or not the termination was lawful were likely to be raised by McIntyre’s legal team.
Originally, McIntyre’s argument was that SBS had discriminated against him on the basis of his political opinion contrary to s 351 of the Fair Work Act 2009 (Cth). Following conciliation proceedings at the Fair Work Commission in July 2015, McIntyre abandoned his s 351 claim, because it was recognised that it could not succeed. (Without going into detail here, essentially, the required basis for the claim under NSW law did not exist). It should be noted that the exposure of the flaw in the claim in itself was a useful outcome of the conciliation conference. Efficiency and justice was promoted by serious consideration of the claim by both parties and an exchange of views about its legal basis.
McIntyre decided to pursue an alternative claim for unlawful termination under s 773 of the Fair Work Act 2009 (Cth). An application was lodged and leave sought to pursue this alternative cause of action out of time. SBS resisted this application, but in October 2015 the Fair Work Commission rejected SBS’s arguments and determined that McIntyre could pursue his new claim. The matter commenced in the Federal Court, there was at least one court event in December 2015, and it was set down for a three day hearing in April 2016. The parties settled the day before the scheduled start date.
Significant Legal Questions
McIntyre’s lawyer Josh Bornstein tweeted on the day after the settlement “It has been a privilege to have represented @mcintinhos & settling his important case about free speech.” A determination of McIntyre’s claim would have provided better guidance to employers and employees about the boundaries of appropriate social media activity and employer responses to employee’s private expressions of their political views. In May 2015, Professor Joellen Riley noted that McIntyre’s case would test the applicability of old law in the age of social media:
Once upon a time, long, long ago, and before social media all but obliterated any boundary between public and private lives, a judge in Australia said (in Australian Tramways’ Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35) that a person may wear, worship or believe whatever one chooses, in matters not affecting work.
The boundary between the employment and private sphere has broken down almost irretrievably for most workers, particularly in fields such as journalism, where employees are expected to engage on social media and to build a public profile that will benefit their employer. Most organisations have social media policies, and the case would have tested the interaction between the employee’s freedom of political expression and such policies.
For dispute resolution practitioners and scholars, the settlement of what would have been an important case reminds us of the public function of our judicial system in providing clarity to citizens about acceptable standards of behaviour.
The terms of the settlement between McIntyre and SBS are private. The questions that would have been determined by the court in the case remain arguable, meaning that other employers and employees are no better placed to predict how the courts would view their actions.
The concern that settlement has an impact upon the development of the law has been voiced throughout the development of the modern dispute resolution field (notably, Owen Fiss in his 1984 article “Against Settlement”). Most matters have always settled, because individuals seek to avoid the risks and costs of engaging in the entire formal legal process. Dominique Allen has noted that discrimination law is a relatively new area of law, largely statute based, and relies upon the judiciary to give guidance about the meaning and application of the statutory provisions, which means that confidential settlements pose a problem in delivering the behavioural guidance that the law is intended to provide (Dominique Allen, “Against Settlement? Owen Fiss, ADR and Australian Discrimination Law” (2009) 10(4) International Journal of Discrimination and the Law 191, 199). Perhaps more attention could be paid to the question of whether there are alternative ways of clarifying the law and delivering justice. Consideration of ways to achieve the benefits of judicial determination, while avoiding the costs to the individuals whose dispute raises important legal questions, may be long overdue. Sometimes dispute resolvers find themselves advocating for dispute resolution as the better process than trial, and engaging in advocacy against trial. But a less adversarial approach to the conversation can support being “for settlement” and “for litigation” (see Michael Moffitt, “Three Things to be Against (‘Settlement’ not included)” (2009) 78(3) Fordham Law Review 1203). There is a need for the litigation process to be critically examined and for means of improvement to be identified. Perhaps dispute resolution scholars, with a penchant for radical non-attached and creative thinking, have something to offer in the innovative justice space?
Last minute settlement
The fact that McIntyre and SBS settled his claim is unsurprising, given the personal costs and risks involved. It is less clear why the settlement was reached at the last minute. It did not occur until after considerable expense had already been incurred by the parties and all of the preparation for the hearing was complete. In that sense, the cost savings to the individual parties were not as great as they might have been had serious settlement negotiations resolved the matter earlier.
As an outsider, it is impossible to know what kinds of negotiation events occurred between the Fair Work Commission’s hearing on 12 October 2015, which confirmed that McIntyre could pursue his claim, and 11 April 2016, when it was announced that the matter had settled. I can hazard a guess that the legal practitioners and their clients may not have had serious and comprehensive conversations about the risks, costs and complexities of going ahead with the hearing until late in the process. For Mr McIntyre, succeeding at the hearing would have brought a considerable sense of justice, but the risk of losing would place him at risk of an adverse costs order. A loss for SBS at the hearing would have included having the details of their decision making in dismissing McIntyre played out in public, and used as an example of what not to do when dismissing employees. The risks and costs could have been understood, considered, and weighed well before the eve of trial. It is true that imminent time pressure does present a part of the persuasion to settle. However, there is a need for innovative thinking about how to create a culture of serious attention to settlement before parties have had significant costs incurred at their expense.
No doubt the time pressures of operating a busy litigation practice mean that only the most urgent of matters receive attention from litigation lawyers. This is why court-connected mediation has succeeded by creating a negotiation event earlier in the litigation process that makes attention to settlement more “urgent” than it would otherwise be. Mediation has not increased the rate of settlement, but it has created an incentive for earlier settlement of cases destined to settle on the steps of court. At the end of the day, the people who benefit most from last minute settlement (as opposed to settlement at an appropriate earlier stage), are lawyers, and this is the great conflict of interest inherent in litigation practice. Perhaps there are more innovations that could be introduced to create incentives for further change to culture and practice?