Lattouf and Gillham were punished for an opinion. It’s a threat that hangs over all Australians

The recent high-profile examples of pianist Jayson Gillham and journalist Antoinette Lattouf reveal the imbalance between the right of employees to freedom of speech about matters of public interest and the needs of their employers, who have an eye to their perception of their brand.

In Australia, the lack of a constitutional right to freedom of speech makes it very difficult for employees to speak in the workplace context about political matters. In South Africa, for example, there is a framework that could better protect individuals like Gillham and Lattouf.

Antoinette Lattouf and Jayson Gillham. Credit: Nine

Gillham had a concert cancelled by the Melbourne Symphony Orchestra last month because he spoke during an earlier performance about the fact many journalists have been killed in the Gaza conflict. Lattouf was removed from radio by the ABC in December after she posted on social media about the Gaza conflict.

The pair is far from alone in facing employer sanctions over the expression of political views. Public and private sector workers and contractors can and do face similar consequences for advocating about controversial issues if they publicly identify themselves as being associated with their employer, or make political statements in the workplace itself.

As a senior member of the legal profession I am aware of cases where young lawyers who have liked or republished a pro-Palestinian post on LinkedIn or other social media have been reminded by their employers of the need to keep their political views separate from their workplace.

Workplace lawyer Paul O’Halloran, writing for this masthead recently, set out the state of law in Australia on this issue. His conclusions amply demonstrate why the law is simply wrong when it comes to freedom of speech and employment.

O’Halloran wrote that the “restriction on political views at work is necessary to create an inclusive, respectful and complaint workplace” and that employees wanting “job security” run a grave risk if they “criticise their employer’s public values or political stance”.

But should it be the case, for example, that arts organisations can sanction employees for writing a public letter to condemn that industry for seeking to close down artists like Gillham? Or that an employee should face discipline for putting up a poster in their office calling for greater action on climate change or one condemning AUKUS?

Where do we draw the line between legitimate expression of political opinion and the need to comply with an employer directive not to make adverse comment about their values or support for particular causes? Each case is dependent on the facts, of course, but employees should be allowed to endorse or advocate for human rights issues that are of national or international significance. For example, endorsing an Amnesty International campaign about the human rights abuses being committed in Gaza. Or supporting self-determination for Indigenous Australians. Such an exercise of freedom of speech is vastly different to criticising your boss, or complaining about fellow employees.

Given the importance of the right to freedom of expression, employees should only be sanctioned if their public commentary breaches anti-discrimination or hate laws, or if it can be said to directly harm their employer’s reputation. A case of the latter might be to accuse the employer of supporting racism in the workplace. While that might be the case, it is reasonable that the employee raise the issue with the employer or in an appropriate legal forum.

So, given what we have seen in the Gillham and Lattouf cases and more generally about the weakness of the position of employees in the political advocacy space, is there a model that would strike a fairer balance?

South Africa has one of the most rights-oriented constitutions in the world, including the right to freedom of speech. This means, as legal academics Jean Chrysostome and Osman Bantu, noted in 2022, that while “the contract of employment has always been regarded as the foundation of a relationship between the employers and employees, it does not allow companies to violate workers’ right to express their views and thoughts in or outside the workplace in social media. A simple reality is that citizens, including workers, have the right to freedom of expression.”

Employers can and do sack employees in South Africa for social media posts or emails that are derogatory, racist or damage the employer. But the main difference between that country and here is that in a dispute an employee can legitimately defend themselves by arguing their constitutional right is a relevant factor.

Another reason for controlling and even prohibiting employers from taking action to prevent their employees from exercising freedom of speech is because personal and professional lives are often blurred, particularly among younger people. They will protest and advocate on their personal social media accounts and some of those posts will be done during work time.

Navigating the balance between freedom of speech for employees and the rights of employers is complex. It raises issues not only of the right to freedom of speech, but also the employee’s right to privacy and to not be discriminated against for political opinion. A balance can be achieved if, despite the lack of constitutional protection in Australia, employers’ guidelines and contracts with employees recognise the right to speak about social and political issues so long as they do not contravene the employers’ values.

Freedom of speech is a fundamental human right and one that should inform the balance between employees and employers. The South African model would offer a better starting point, so that freedom of speech is a primary consideration when concerns are raised about statements made, or posts liked by employees on a contentious political or social issue.

Greg Barns SC is a barrister who practises in criminal law.

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