Why we should all hope Antoinette Lattouf doesn’t settle with the ABC

The Lattouf v ABC case is the latest in a series of conflicts between employers and employees over the right to express personal views and meet employment obligations. At stake are some important questions. Can a complaint that tests a breach of workplace policy against a claim of discrimination be adequately dealt with under current employment laws? How can workplace policies also allow employees the right to hold and express their own views and values, especially in relation to the rights of journalists?

Ultimately, these questions need to be tested if we are to find a way forward in reconciling the polarised positions in these increasingly common clashes. For that reason, let’s hope that Antoinette Lattouf has the staying power not to settle, as other high-profile claimants have done.

Ita Buttrose and Antoinette Lattouf.Credit: Louie Douvis; ABC

The ABC argues it took action against Lattouf not on the basis of her race but because, after being told not to post anything contentious, she breached the ABC’s social media guidelines by posting a Human Rights Watch report on Israel’s alleged use of starvation as a tool of war in Gaza. It has also raised a jurisdictional objection, arguing it did not actually terminate Lattouf’s employment in the first place.

The social media guidelines require employees using personal social media to, among other things, “not damage the ABC’s reputation for impartiality and independence”, “not mix the professional and the personal in ways likely to bring the ABC into disrepute”, and “not imply ABC endorsement of your personal views”.

Most modern employers have similar workplace policies and codes of conduct in place, particularly where their employees are public figures. If an employee says or does anything controversial, in their own time, and it is shared on social media, they can be dismissed depending on the policy and nature of the breach.

These policies have been relied on in other recent notable cases, including Israel Folau’s sacking by Rugby Australia, and that of SBS journalist Scott McIntyre over his controversial tweets about Anzac Day in 2015. Both these matters were settled by the parties, leaving important questions unanswered. However, court and tribunal rulings in Australia have consistently supported employers in seeking to enforce such policies, where the employer establishes a legitimate interest in regulating employees’ private conduct.

Lattouf has commenced proceedings against the ABC under section 772 of the Fair Work Act, which provides that an employer must not terminate an employee’s employment on a range of discriminatory grounds, including race, religion and political opinion. She will argue that even if the ABC can establish a breach of the social media policy that justified termination, nonetheless, the termination was in breach of section 772 on the grounds of political opinion or race.

The same argument was raised in Folau’s case. He claimed Rugby Australia’s workplace policies prohibited him from sharing religious information, thereby discriminating against him on religious or political grounds. Since Folau’s matter was settled, we didn’t get a ruling on how far these protections might extend.

However, previously decided cases suggest that where there is a proven breach by an employee of a workplace policy, the pursuit of a claim under section 772 (or a similar provision) will be difficult. This is because the employer will be able to argue that the motivation for taking disciplinary action was based on a breach of the workplace policy, not on discrimination, which the ABC has stressed in Lattouf’s case.

A further issue raised in Lattouf’s matter is whether she, or any employee, has a “freedom of speech”. This issue, too, has been raised in previous cases – including Folau’s. Many Australians wrongly believe we have such a general right; however, unlike the United States, “free speech” is not codified in Australian law.

In a 2019 High Court decision involving a public sector employee dismissed for breaching the Australian Public Service code of conduct, Comcare v Banerji, the employee sought protection from dismissal based on the implied constitutional right to political expression. The claim was unsuccessful.

In a later decision concerning academic employment, Ridd v James Cook University, the High Court also upheld the employee’s dismissal – but confirmed that as an academic with special protections of intellectual freedom, the employee had the right to express genuinely held views within his areas of expertise, even if contrary to certain standards in the university’s code of conduct.

However, the source of those protections was the university’s enterprise agreement. Therefore, the decision is not relevant to other employment categories – including journalism.

Given the prevalence of these kinds of clashes, employers and employees will be watching this case with interest. At stake is more than the termination of Lattouf’s contract. It tests the role of the media and the right of journalists to express their views. Lattouf has certainly framed the fight as having broader implications, saying: “Even for non-diverse journalists, my sacking and the sacking of others has a chilling effect on journalism. People are now too scared to report without fear or favour.”

Many previous cases of this kind have ultimately not proceeded, meaning that important issues have not been tested. It seems likely that the ABC will try to settle because it knows all too well that there is, indeed, such a thing as bad publicity. Lattouf, however, seems likely to be willing to take a stand and go the full distance so she can prove her point.

For employers, employees and the interested bystander, a settlement would be a disappointing outcome. Let’s hope the case runs its full course.

Dr Giuseppe Carabetta is an associate professor of workplace and business law at the University of Technology Sydney.

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