Antoinette Lattouf’s victory over the ABC has unleashed a powerful new legal principle that looks set to redefine the boundaries of freedom of communication. And not necessarily in a good way.
Unless handled with care, this principle could be twisted into a workplace charter for political activists.
Lattouf won her case because the ABC breached several provisions of the Fair Work Act, as well as its own enterprise agreement, when it terminated her temporary employment as a radio presenter.
That, hopefully, will lead to some big changes at the ABC.
But the real impact of this case will be felt far beyond the ABC thanks to a new interpretation the Federal Court has placed on a key provision of the Fair Work Act.
Justice Darryl Rangiah’s ruling means nobody can be sacked for expressing a political opinion – which extends the scope of the Fair Work Act.
It means section 772(1) of that Act now has an explicit role in protecting freedom of political communication in the workplace.
Before this case, the full scope of section 772(1) was unclear.
It merely said it was unlawful to sack people for several listed reasons, including “political opinion”. It did not spell out whether this was limited to holding a political opinion or whether it extended to expressing a political opinion.
There is an enormous difference between the two concepts.
One would prevent the dismissal of people for their perceived political leanings, while the other – which now has the force of law – could give a green light to those who would use the workplace as a political pulpit.
Lattouf had argued this provision prevented people being dismissed on both grounds – because of political opinions they held, as well as political opinions they expressed. Rangiah agreed.
His judgment is clear: “In my opinion, the protection for employees under section 772(1) against termination of employment for reasons including ‘political opinion’ encompasses not only the holding of a political opinion but also the expression of a political opinion.”
Because Rangiah was dealing only with the case before him, he was not in a position to take account of the full range of possibilities that might result from this change in the law.
But it is easy to imagine how the new approach might hobble the efforts of employers seeking to prevent advocacy on political issues – such as the war in the Middle East – from causing disruption in the workplace.
Political activists can still be sacked for other reasons, such as neglecting their duties, disrupting the workplace or refusing to obey a clear direction. But the big lesson from the Lattouf case is that this must be done properly, by following the checklist of procedures set down in the Fair Work Act or an enterprise agreement.
If that guidance is not followed, it could be viewed as an unlawful dismissal based on the expression of a political opinion.
In the ABC’s case, it is worth considering how different the outcome might have been had proper procedures been followed.
First up, Lattouf should have been given written instructions not to post anything on social media. When it was found she had posted something, she should have been notified in writing about any alleged misconduct. She should have been told how the allegation would be handled and given an opportunity to respond.
None of this is rocket science. It’s just basic fairness. Yet none of those things happened.
Instead, the ABC had prepared a media statement announcing Lattouf’s removal before she was even called in for a meeting and told to clear her desk.
The only good that might come from this fiasco is that it might prompt a move to greater fairness at the ABC when dealing with employees, and a little more rigour when it comes to recruitment.
In the best of all possible worlds, parliament might also need to engage in a period of introspection.
Decisions about the scope of section 772(1) should never have been left to the courts.
Parliament should have drafted this provision in a way that removed all doubt about its potential reach and the exact nature of what the politicians were trying to achieve.
Were they only concerned with preventing the dismissal of employees based on perceived political leanings, or did they really want to encourage political debate in the workplace?
Clear drafting could have answered those questions. But that did not happen.
Consider Rangiah’s position. He was confronted with a law that was so vague it was open to interpretation.
He had been presented with an argument from Lattouf that needed to be addressed, and his judgment says there is very little judicial authority from earlier decisions on how section 772(1) should be interpreted.
So if Rangiah’s interpretation does have the effect of emboldening political activists in the workplace, the blame should not rest with the judge but with those who drafted this statute using terms that lack precision.
What happened in the Lattouf case is scandalous. But it has provided some guidance on how to prevent Rangiah’s expansion of section 772(1) being misused by those who view the workplace as a forum for politics.
Had the ABC terminated Lattouf’s employment in a lawful manner, there is every likelihood the content of her political opinions would have been irrelevant.
But a cascading series of mistakes meant this woman’s sacking has become the perfect example of how not to show an employee the door.
Chris Merritt is vice-president of the Rule of Law Institute of Australia.
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