Employers beware of dismissing for political opinion

Category: Australia, Employment Law
Date: 01 July 2025
Author: Hunt & Hunt - Genuine People

Lattouf v. ABC

A landmark decision on unlawful termination claims was handed down by Justice Rangiah in the Federal Court on 25 June 2025 in the much publicised case of Lattouf v. Australian Broadcasting Corporation (No. 2).

Facts

Ms Antoinette Lattouf was employed by the ABC to present the Sydney Mornings radio program for 5 days from 18 to 22 December 2023. Prior to that time, she had made numerous social media posts expressing her views about the Israel/Gaza war.'  The major theme of the posts was of the mass killing of Palestinian civilians by Israeli forces. During her period of work, on 20 December 2023, ABC managers became aware that on the previous day, Ms Lattouf had reposted a Human Rights Watch (HRW) video report entitled, "The Israeli government is using starvation as a weapon of war in Gaza", on her Instagram account. ' She added the words, "HRW reporting starvation as a tool of war" (HRW Post). Prior to the HRW Post, the ABC had already received complaints from members of the public after Ms' Latouf had presented her first program.'  The complaints asserted that she had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC.'  Justice Rangiah indicates that it became clear that the complaints were an orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air. After ABC management became aware of the HRW Post, Justice Rangiah comments that the consternation of senior managers of the ABC about the complaints received turned into what can be described as a state of panic. Within an hour of becoming aware of the HRW Post, Ms Lattouf was informed that she would be taken off air, having shared a post that could be considered controversial and having allegedly breached the ABC's policies.'  She was informed that she would not be required for her remaining 2 shifts.

Ms Lattouf's claim

Ms Lattouf's legal claim against the Australian Broadcasting Corporation (ABC) was for unlawful termination under section 772 of the Fair Work Act 2009 (Cth) (FW Act). This type of claim is distinct from an unfair dismissal claim and is relatively less common. Her claim involved the following key allegations:
  1. Unlawful Termination:
    • That her employment was terminated for prohibited reasons, contrary to section 772(1)(f) of the FW Act, specifically:
      • Political opinion; and/or
      • Race or national extraction.
  1. Breach of Enterprise Agreement:
    • That the ABC breached its obligations under its Enterprise Agreement, by:
      • Failing to provide her an opportunity to respond to allegations of misconduct made against her.
      • This constituted a breach of section 50 of the FW Act, which prohibits employers from contravening the terms of an applicable enterprise agreement.

' Federal Court findings

The Federal Court made the following findings:
  1. It was an implied term of the employment contract that the ABC would provide Ms' Lattouf with a reasonable opportunity to present Mornings to the public;
  2. The ABC repudiated the contract of employment by informing Ms Lattouf that she would no longer be permitted to present Mornings. It also terminated her employment;
  3. The actions of relevant ABC managers were not motivated to any extent by Ms' Lattouf's race or national extraction;
  4. The decision to terminate Ms Lattouf's employment was made solely by Chris Oliver-Taylor, the chief content officer;
  5. Mr David Anderson, Managing Director, made a material contribution to the decision to terminate by informing Mr Oliver-Taylor of his view that Ms' Lattouf had anti-Semitic opinions;
  6. Contrary to his evidence, Mr Oliver-Taylor knew that Ms' Lattouf had not been given any direction about social media posts and had merely been given advice not to post anything about the Israel/Gaza war;
  7. The statutory protection against termination of employment for "political opinion" encompasses not only holding a political opinion but also expressing a political opinion;
  8. Ms' Lattouf's expression of opposition to the Israeli military campaign in Gaza in the HRW Post was a substantial and operative reason for the decision to dismiss her (there were other reasons, such as protection of the ABC's reputation). Justice Rangiah commented that the decision to terminate "was made to appease the pro-Israel lobbyists who would inevitably escalate their complaints about the ABC employing a presenter they perceive to have anti-Semitic and anti-Israel opinions in such a public position".
  9. Mr Oliver-Taylor attributed to Ms' Lattouf the holding of a political opinion opposing the Israeli military campaign in Gaza which, in his view, made her unsuitable to work as a presenter at the ABC;
  10. The ABC had also breached the obligations under its enterprise agreement to provide an employee with procedural fairness before taking disciplinary action.
Justice Rangiah did separately comment that Ms Lattouf's making of the HRW Post was ill-advised and inconsiderate of her employer. Ms' Lattouf was awarded compensation for non-economic loss of $70,000. The matter will also be set down for a further hearing to determine whether and what amount of pecuniary penalty the ABC should be ordered to pay, given its breaches of the FW Act.

Ramifications of decision for employers

The decision is of major significance for employers because most employment contracts and/or social media policies contain provisions requiring employees to refrain from conduct which could bring the employer into disrepute (often with more specific requirements in the policies). Over the last couple of decades, employers have used these clauses to become more involved than they had previously been in controlling the conduct of employees outside of working hours, including on social media. The decision means that employers need to take additional care before disciplining employees for expressing political opinions which do not align with their values. The same applies to religion, as this is also a protected attribute. Whatever reason the employer gives the employee for the dismissal, the court can go behind this and decide that the political opinion held by the employee was a substantial or operative reason for the termination. The Court rejected Mr Oliver-Taylor's evidence that his decision to dismiss was due to both:
  1. his view that Ms Lattouf had breached the ABC's Personal Use of Social Media Guidelines; and
  2. a loss of trust and confidence in Ms Lattouf to present live radio in accordance with directions issued.
In deciding what the real reasons for dismissal were, a court can consider messages between managers at the time of the dismissal (emails and text messages), in addition to their verbal evidence. If the Court had agreed with Mr Oliver-Taylor that Ms Lattouf had been given a direction not to post anything about the Israel/Gaza war, the judgement would only have been different if the ABC could have persuaded the Court that the direction was both lawful and reasonable. This issue would still have presented a significant hurdle for the ABC. Legal advice should be sought before employers consider disciplining an employee based on their holding or expressing a political opinion.

With David Thompson