Free Speech Wins: What the Lattouf Case Means for Employers

In a landmark decision, the Federal Court of Australia (Court) has ruled that the Australian Broadcasting Corporation (ABC) had no right to terminate the employment of Ms Antoinette Lattouf (Ms Lattouf) after she shared a ‘Human Rights Watch’ post that said Israel used starvation as a “weapon of war” in Gaza.

The Court determined that ABC contravened the Fair Work Act 2009 (Cth) (FWA), when it terminated Ms Lattouf’s employment because she held a political opinion in respect of the Israeli military campaign in Gaza.

The Court held that the termination contravened both section 772(1)(f) and section 50 of the FWA, delivering a judgment that reinforces an employee’s statutory protection of political opinion and procedural fairness.

The nature of this decision is significant as it was not limited to just the protection of political opinion but tackled several facets of the termination procedures. It serves broad guidance for employers to consider when managing the employment of its employees.

 

What happened?

Ms Lattouf was employed by the ABC as 5 day ‘fill-in’ host of the “Mornings” radio program on ABC Sydney from Monday, 18 December 2023 to Friday, 22 December 2023. During her engagement, Ms Lattouf reposted a video report by Human Rights Watch (HRW) on her personal Instagram account. The video alleged that the Israeli government was using starvation as a weapon of war in Gaza. She added the caption, “HRW reporting starvation as a tool of war.”

While the ABC itself had reported on the HRW material in its news division, senior management at the ABC reacted to Ms Lattouf’s post with considerable concern. Within hours, a decision was made to remove her from the program for the remaining 2 days of her engagement. She was instructed to inform the production team and leave the premises. No specific policies were identified as having been breached, other than the loose mentioning of “editorial ABC guidelines” and she was not provided with notice of any allegations, nor was she given any opportunity to respond to any allegations before her dismissal.

 

Did the ABC terminate Ms Lattouf’s employment?

Among other things, the ABC disputed that it had terminated Ms Lattouf’s employment. The ABC attempted to argue that Ms Lattouf’s casual employment contract included a term which allowed the ABC to make changes to the engagement, so long as it notified Ms Lattouf of these changes. The ABC’s argument followed that Ms Lattouf was placed on “garden leave” for the remaining 2 days because it paid her for the entire (5 day) engagement and simply relieved her of her duties for the remaining days. Therefore, the employment was mutually terminated at the end of the 5-day engagement as per the employment contract, rather than unilaterally terminated on the 3^rd day.

However, the Court did not agree with this approach. The Court accepted evidence from Ms Lattouf which showed that the ABC only retrospectively decided to pay Ms Lattouf for the entire engagement after she took issue with the termination, and did not initially inform her that she would be paid the full amount.  The Court took the view that ABC’s payment of Ms Lattouf’s remuneration for the full 5-days was actually an ex-gratia payment, rather than payment of wages. In its decision, the Court referred to the fact that Ms Lattouf’s contract explicitly confirmed that Ms Lattouf would be paid for each hour worked.

The Court went even further to clarify that even if the payment should be considered as wages (as argued by the ABC), the Court noted that this would only keep the contract itself alive, however the actual employment relationship (which is more than a mere contract) ended when Ms Lattouf was given no further work.

 

Unlawful Termination for Political Opinion

Section 772(1)(f) of the FWA prohibits the termination of an employee’s employment for reasons including the employee’s political opinion. The Court accepted that Ms Lattouf held political views including, opposition to the Israeli military campaign in Gaza, support for Palestinian human rights, and concerns regarding the lack of impartial media coverage of the Israeli-Palestine conflict.

Importantly, the Court confirmed that the protection under section 772(1)(f) extends not only to the holding of political opinions but also to their expression. This interpretation aligns with the broader objective of the FWA to safeguard employee freedoms such as political expression, particularly in the contexts of public discourse and social media.

The ABC attempted to argue that the contents of the HRW video were not ‘facts’ but simply opinions, which encroached on the obligation of Ms Lattouf to remain unbiased as a journalist. The Court rejected ABC’s argument and found that Ms Lattouf had still complied with her obligations to only post information from a “reputable organisation” and/or “a verified source”.

The Court found that the ABC’s decision to terminate Ms Lattouf’s employment was substantially and operatively influenced by her expression of political views by way of reposting the HRW video. While the ABC maintained that its decision was based on concerns about impartiality, possible breach of internal policies, and reputational damage, the Court rejected these justifications, finding them to be pretextual or baseless.

In particular, the Court found that:

• The ABC had not provided Ms Lattouf with any formal directive not to post on social media;
• The HRW post was consistent with prior content the ABC had published in its own news reporting;
• The decision to remove Ms Lattouf was made in response to pressure from external stakeholders, including lobbyists and media criticism; and
• The ABC had failed to demonstrate that Ms Lattouf’s political opinions were a valid reason for the termination.

Accordingly, the Court concluded that the ABC had contravened section 772(1)(f) of the FWA by terminating Ms Lattouf’s employment for reasons including her political opinion.

 

Breach of Enterprise Agreement

The Court also found that the ABC had breached section 50 of the FWA by failing to comply with its Enterprise Agreement. Clause 55 of the Agreement outlines the disciplinary process to be followed when allegations of misconduct are made against an employee. This includes the obligation to:

• Inform the employee of the allegations;
• Provide an opportunity for the employee to respond; and
• Consider the response before making a determination.

The Court held that the ABC had effectively accused Ms Lattouf of misconduct but failed to comply with the above procedural requirements. Instead, the decision to terminate her engagement was made unilaterally and without affording her the right to respond. The Court found this to be a clear contravention of the Enterprise Agreement and in turn, a breach of section 50 of the FWA.

The Court also gave significant weight to the fact that the ABC did not respond to an email sent by Ms Lattouf at the time of dismissal where she asked the ABC for clarity on whether she was still employed and, if not, on what grounds she was dismissed.

 

Relief Granted

The Court ordered that the ABC pay $70,000 to Ms Lattouf as compensation for non-economic loss arising from the unlawful termination. The Court accepted that the non-economic loss involved the psychological harm, reputational damage, and emotional distress Ms Lattouf experienced as a consequence of the termination. Evidence was provided that she suffered anxiety, sleep disturbance, and damage to her professional integrity as a result of the public nature of the dismissal.

The Court also issued declaratory relief confirming the breaches of the FWA and indicated that pecuniary penalties against the ABC would be considered at a later hearing.

 

Broader Implications

This decision has significant implications for all Australian employers across all industries.

Key takeaways include:

• Casual employees may still have the same rights as permanent employees under the FWA, including access to unfair dismissal remedies, due process and procedural fairness, particularly in circumstances where the termination was carried out at the employer’s initiative.
• A dismissal is considered to have occurred when the employer initiates the termination of the employment relationship, regardless of the specific method or event that triggered it.
• An employment relationship is not confined to the terms of a single contract. It encompasses a broader context, including:
  • the nature and scope of the work performed;
  • applicable industrial instruments such as awards or enterprise agreements;
  • any series of successive fixed-term contracts;
  • the surrounding circumstances in which the employment arrangement operated;
  • the behaviour and interactions of both parties throughout the employment; and
  • the manner in which the employment ultimately came to an end.
• The Courts will expect employers to understand the difference between:
  • the contract and employment relationship terminating naturally; or
  • termination at the initiative of the employer.
• Employers must ensure that decisions regarding employment are not influenced by political opinion, whether held or expressed.
• Procedural fairness must be followed when managing allegations of misconduct, especially where an enterprise agreement applies.
• An employer’s concern about reputational risk does not override an employee’s rights under the FWA.
• Temporary or short-term employment contracts are still subject to the full protections of employment law.

This decision highlights the intricacies of the FWA and related workplace laws, demonstrating how even minor oversights, misjudgements, or misinterpretations can result in significant risk. Disciplinary and/or termination procedures must be handled with precision and usually require expert legal guidance to ensure compliance. Often employers underestimate the importance of investing in quality legal advice, only to find themselves paying a much heftier price tag when things go sour.

Do not go it alone! Our team of experts at Chamberlains Law Firm are equipped to support your business and offer tailored and effective services to achieve your business objectives while minimising risks.

 

This article was prepared with the assistance of Isabella Turner and Challita Tahhan.