By Michaela Whitbourn and Olivia Ireland
Antoinette Lattouf’s victory against the ABC in her unlawful termination case is expected to trigger a flurry of disputes about the scope of workers’ protections against being sacked over their political views.
In a decision on Wednesday, Federal Court Justice Darryl Rangiah found the ABC sought to appease pro-Israel lobbyists in 2023 by axing Lattouf’s five-day Sydney radio contract after three days because “she held political opinions opposing the Israeli military campaign in Gaza”.
Antoinette Lattouf leaves the Federal Court in Sydney after her court win against the ABC on Wednesday.Credit: Oscar Colman
This contravened Fair Work Act protections against the termination of employment on grounds including political opinion. Lattouf’s opinions had been expressed on social media but not on radio.
Michael Bradley, managing partner of Marque Lawyers, said Rangiah found both “holding political opinions and expressing them” were protected, “and he took a pretty wide view of how that protection works”.
Asked if the Lattouf decision would encourage other employees to test the limits of the law, he said: “Yes, it definitely will. Those conversations are already happening.”
But the decision did not mean employers could never impose limits on employees’ public expression of political opinions.
No direction issued to Lattouf
Bradley said Rangiah did not “engage with the scenario where an employee has been directed not to ... go on social media and make comments on political issues” because he found that in Lattouf’s case “there wasn’t a direction at all, just advice”.
“If he had found that that direction had been issued to her, he would still have had to consider whether it was a lawful direction and a reasonable one, and then how that interacts with the right protected by the Fair Work Act,” he said.
He said there were “undoubtedly circumstances where it’s simply untenable from an employer’s perspective, given the nature of their business ... for their employees to have free rein out there expressing political opinions”.
“A simple example would be a political party. Media organisations obviously have important imperatives including impartiality and independence, so they have legitimate interests to protect.”
“There are undoubtedly circumstances where it’s simply untenable from an employer’s perspective … for their employees to have free rein.”
Marque Lawyers managing partner Michael Bradley
In 2019, rugby player Israel Folau reached a settlement with Rugby Australia and NSW Rugby Union after he was sacked over a social media post he said reflected his “genuinely held religious beliefs” on homosexuality. Religion is also protected under the fair work laws.
“There’s a great deal of controversy about where you find that correct balancing point between the individual right and the legitimate interests of the employer,” Bradley said. “All of that’s still up for grabs.”
Clear policies important
Bradley said the Lattouf case did “underline the point that if an employer wants to exercise any level of control over its employees’ behaviour in this field, then it’s important it have policies that reflect that so that it can enforce them”.
“They still need to be reasonable and proportionate, but trying to control your employees’ activity in the absence of clear policy is a recipe for disaster.”
Antoinette Lattouf on Wednesday.Credit: Oscar Colman
Mariam Chalak, senior associate and team leader at Harmers Workplace Lawyers, said the decision clarified the breadth of the protection for political views, but left “relatively untested” the circumstances in which a direction would be lawful and reasonable.
An employer direction “cannot be at odds with the Fair Work Act”, she said.
“Even though the analysis wasn’t fully tested, it’s likely that if a direction had been given by the ABC that Antoinette was not to post on social media, it still potentially would not have been considered to be a reasonable and lawful direction,” Chalak said.
She noted the ABC also did not argue that it was an “inherent requirement” of Lattouf’s radio presenting role that she should not post on social media.
“That defence wasn’t mounted by the ABC, and that’s something that’s still to be tested. There may be arguments that posting on social media goes against the inherent requirements of a particular role.”
Comments on the conflict in the Middle East have led to a series of ructions between organisations and their employees or independent contractors.
SEN Radio “parted ways”, in its words, with prominent cricket journalist Peter Lalor in February after he reposted news stories on social media about the Israeli attacks in Gaza.
FIGHTING WORDS
- Australian courts have heard a string of disputes about public commentary by employees.
- Academic Peter Ridd lost a High Court case against James Cook University, after he was sacked over comments including about the Great Barrier Reef on Sky News.
- On June 23, Melbourne street sweeper Shaun Turner won a Fair Work Commission case against Darebin City Council after he was dismissed last year over comments about the Acknowledgement of Country at a work meeting.
“I was told there were accusations I was antisemitic, which I strongly objected to,” Lalor said in a statement at the time.
Last year, the Melbourne Symphony Orchestra terminated the contract of international concert pianist Jayson Gillham ahead of a planned concert on August 15. Gillham had made remarks about the Israel-Gaza war before performing a piece at the MSO earlier that month.
The pianist has launched Federal Court proceedings against the MSO. The dispute is listed for a five-day trial from December 1. The case will involve an examination of whether Gillham, as an independent contractor rather than an employee, was covered by certain protections.
Meanwhile, freedom of expression for casual workers in academia is high on the National Territory Education Union’s radar.
National president Alison Barnes said what is happening to universities in the United States under Donald Trump is proof of “how precarious academic freedom is and the threats it faces on multiple fronts”.
“The casualisation of the university workforce is a massive threat to academic freedom in Australia. If you’re on a casual or fixed-term contract, do you think twice before exercising academic freedom, especially on controversial topics?”
Public servants
Public servants are covered by a range of specific restrictions. Michaela Banerji was sacked in 2013 from the Department of Immigration and Citizenship for posting anonymously on Twitter, now X, under the username @LaLegale, including comments critical of immigration policy.
The Commonwealth Public Service Act enshrines a set of values including that the APS is apolitical and performs its functions impartially, and a related code of conduct requires public servants to behave “at all times” in a way that upholds those values.
Banerji was sacked for breaching that code, and argued the Public Service Act provisions fell foul of the implied freedom of political communication in the Commonwealth Constitution. The High Court ruled against her in 2019.
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