The Federal Court of Australia has handed down a decision in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, an unlawful termination application by Antionette Lattouf, confirming that the Australian Broadcasting Association (ABC) breached the Fair Work Act 2009 (Cth) by dismissing Lattouf for expressing political opinions.

Background

Lattouf made various social media posts with her views on the Israel/Gaza war, which became a worldwide news story. Lattouf commenced employment with ABC on 18 December 2023, and following her first program she presented, ABC received complaints from members of the public that she “had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC”. The complaints appeared to be orchestrated by a “pro-Israel” group to have Lattouf fired.

ABC, on their view, issued a direction to Lattouf “not to post anything on social media that would suggest she was not impartial in relation to the Israel/Gaza war”. The Court believed this was not a direction, but advice. Lattouf proceeded to share a post by the Human Rights Watch. ABC advised Lattouf that sharing the post was considered to be controversial and that she had breached ABC’s policies. Lattouf was not told which policies were breached, nor was she given the opportunity to respond to the allegations. She was advised that she did not need to work her final 2 shifts.

Lattouf claimed that ABC terminated her employment “for reasons that included her political opinion, race and national extraction”. Lattouf also asserted that ABC breached the ABC Enterprise Agreement 2022-2025 by not allowing her to respond to the allegations, which constitutes a breach of section 50 of the FWA.

Legal Position

Contravention of section 772 FWA

The FWA provides at section 772 that “an employer must not terminate an employee’s employment for…political opinion…”. Mr Oliver-Taylor’s (Chief Content Officer) reasoning for the dismissal included that “Ms Lattouf had not complied with a direction given to her not to post anything about the Israel/Gaza war and that she had contravened the ABC’s Personal Use of Social Media Guidelines”, but this contradicted his notes. Ms Green, the Content Director for ABC, advised Lattouf that it would be best if she did not post any material on social media about the war in Israel/Gaza, but she also asserted that this ‘advice’ was not a direction.

ABC argued that the requirement for Lattouf not to work the remaining shifts was allowed under the employment contract and that this request was not a dismissal. One employee advised Mr Oliver-Taylor and Mr Ahern that a screenshot from Lattouf’s account can be easily misconstrued, and cautioned about overreacting to the issue. The employee also advised that disciplinary action was not warranted. The same employee later advised that based on his review, Lattouf had not breached the social media policies of ABC.

The Court questioned whether Lattouf did in fact express political opinions. The Court stated “the expression “political opinion” within s 772(1) of the FWA encompasses the opinion of an employee about the policies or actions of the government of a country or its armed forces”. The Court found that Lattouf had expressed a political opinion.

Lattouf sent an email to management following her dismissal, setting out that she thought the dismissal was unfair, asking how other news outlets were already aware of her termination and asked for clarification of which part of the social media policy she breached. Lattouf alleged in the email that she had been advised that sharing posts from reputable sources was allowed.

The Court cited Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 67, which stated “there is a difference between the employment relationship and the contract of employment. A contract of employment can come into existence before the employment relationship is formed and an employer who withdraws an offer of employment after it has been accepted or an employee resigns before the starting date can be liable for breach of contract”. The Court also referred to the decision of Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, where the High Court determined that a dismissal was wrongful as it was in breach of contract as well as a wartime regulation.

The ABC was found to have repudiated the contract, and therefore to have terminated Lattouf (noting the FWC had already reached this conclusion). The reasons for termination of Lattouf were “interconnected with Ms Lattouf having made the HRW Post and his opinion that she was thereby expressing support for the view that Israel was adopting starvation tactics as part of its military campaign in Gaza”. Lattouf “had expressed a controversial opinion” which was “a substantial and operative reason” for the termination.

Contravention of section 50 FWA

The Court noted that common law does not place an obligation on an employer to adhere to procedural fairness before commencing disciplinary action, including termination. The stated that the Enterprise Agreement, however, provided that the ABC needed to “inform an employee of the content of an allegation of misconduct and provide them with a reasonable opportunity to defend themselves before a decision is made as to whether the allegation is substantiated”. ABC breached the Enterprise Agreement by failing to notify Lattouf of her alleged misconduct, failing to allow her a support person, failing to advise her in writing of the process to be undertaken and failing to provide her with an opportunity to respond.

Outcome

Lattouf was successful in the unlawful termination claim for ABC’s breach of the FWA. The Court found that ABC breached both section 50 and section 772 of the FWA.

Lattouf was awarded $70,000 in compensation by ABC for breach of section 772 and section 50 of the FWA by contravention of section 55 of the FWA. The Court ordered that the matter be set down for a hearing in relation to deciding if ABC should pay pecuniary penalties.

Lessons for employers:

• Political opinion involves an employee having an opinion about a government or country. An employer cannot terminate an employee’s employment on the basis of that employee’s political opinion.
• Breaching an enterprise agreement also breaches section 50 of the FWA.
• To breach section 772 of the FWA by dismissal for political opinion, the political opinion should be a substantial and operative reason for the termination.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.