Federal Court finds ABC dismissed Antoinette Lattouf for expressing political opinion

The Federal Court of Australia has held that the Australian Broadcasting Corporation (ABC) unlawfully terminated the employment of Antoinette Lattouf for reasons including that she held a political opinion opposing the Israeli campaign in Gaza, in contravention of the Fair Work Act 2009 (Cth) (FW Act).

Background facts

On 18 December 2023, Ms Lattouf commenced employment with ABC to host the Sydney Mornings program for the five-day period from Monday 18 December 2023 to Friday 22 December 2023.

Soon after Ms Lattouf presented her first program, the ABC began to receive complaints from the public, asserting that Ms Lattouf had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC. In his judgment, Justice Rangiah described these complaints as an "orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air".

Ms Lattouf was given what the ABC characterised as a "direction" not to post anything on social media that would suggest she was not impartial in relation to the Israel/Gaza war. This characterisation was rejected, with Justice Rangiah finding that Ms Lattouf was merely provided with advice that it would be best not to post anything controversial about the war, and that the decision-maker understood that this was a "mere request" rather than a direction.

The campaign to have the ABC remove Ms Lattouf continued, and on 20 December 2023, the ABC became aware that the previous day, Ms Lattouf had reposted a Human Rights Watch video report titled "The Israeli Government is using starvation as a weapon of war in Gaza”, on her Instagram account, adding the words, “HRW reporting starvation as a tool of war” (the HRW Post). Of note, the HRW Post had already been the subject of a story on ABC News.

The Court found that on becoming aware of the HRW Post, "the consternation of senior managers of the ABC turned into what can be described as a state of panic" and within one hour of becoming aware of this post, the ABC decided to take Ms Lattouf off air. She was advised that the reason that the ABC did not require her to perform her two remaining shifts was because she had breached the ABC's policies or guidelines. However, no specific policies were identified, and Ms Lattouf was not afforded an opportunity to respond to the allegation.

What were the alleged contraventions?

Ms Lattouf made an application in the Federal Court of Australia alleging that the ABC had contravened section 772(1)(f) of the FW Act, which relevantly prohibits termination of employment for reasons including political opinion, race or national extraction. Ms Lattouf is of the Lebanese race and Lebanese national extraction.

Ms Lattouf also alleged that ABC had contravened section 50 of the FW Act, which prohibits the contravention of an enterprise agreement and on the basis that she had not been provided with an opportunity to respond to allegations of misconduct made against her, as required by the ABC Enterprise Agreement 2022–2025 (Enterprise Agreement).

While the application's primary focus was on the alleged section 772 contravention (which we discuss in detail below), Justice Rangiah also held that the ABC breached clause 55.2 of the Enterprise Agreement by failing to inform Ms Lattouf of the content of an allegation and to provide her with a reasonable opportunity to respond before a decision was made as to whether the allegation is substantiated.

General protections principles apply to section 772(1)

It is notable that Ms Lattouf's application relied not on the general protections provisions under Part 3-1 of the FW Act (as is often the case in matters of a similar nature) but rather on section 772(1) of the FW Act. Section 772(1) provides that an employer must not terminate an employee's employment "for" one of the listed reasons, while section 351 provides that an employer must not take adverse action against an employee "because of" a protected attribute.

Ms Lattouf argued that the word "for" in section 772(1) necessitated a lesser connection between the termination and the prohibited reason(s) than in Part 3-1. This interpretation was not accepted by the Court, which found that "for" and "because of" have the same meaning, such that the well-established principles of interpretation that apply in the general protections framework were relevant to the interpretation of section 772(1) of the FW Act.

Did the ABC terminate Ms Lattouf's employment?

The ABC denied that it had terminated Ms Lattouf's employment and submitted that, on 20 December 2023, it had merely advised her that she would not be required to be present the Mornings program for last two shifts of the engagement. It also argued that it was authorised by her employment contract to change her hours and duties to nil (noting that Ms Lattouf was still paid for the two unworked shifts).

The ABC said further that there could not be a termination of the employment without repudiation of the employment contract, and that it did not repudiate the contract by reason of the reduction to her hours. This was relevant to the question of whether ABC had terminated Ms Lattouf's employment for the purpose of section 772(1).

The Court acknowledged there is generally no implied term which requires an employer to provide work for the employee. However, there are some exceptions to this general principle, which include where the employee can be described as a "performer". In this case, the Court determined that Ms Lattouf fit this description in that she was engaged to provide entertainment as host of Mornings and the opportunity of exposure to the public on the show was important to Ms Lattouf's career.

Additionally, the Court determined that the ABC's contractual right to vary the duration of Ms Lattouf's engagement was not inconsistent with an obligation to provide work within whatever the duration of the engagement is or is changed to, and the entitlement to vary the work to be performed or the hours required by Ms Lattouf under the employment contract did not enable the ABC to provide Ms Lattouf with no work (as it had done in this case).

On that basis, the Court considered that the ABC had repudiated the contract because it had not allowed Ms Lattouf a reasonable opportunity to present Mornings for the final two days of her engagement, and therefore, it found that the ABC terminated Ms Lattouf's employment within the meaning of section 772(1) of the FW Act.

Who was the "decision maker"?

As in a general protections application, the key question in Ms Lattouf's section 772 claim was who was involved in the decision to terminate her employment.

Prior to 20 December 2023, Christopher Oliver-Taylor, the ABC's Chief Content Officer, had consulted with David Anderson, the ABC's Managing Director, about decisions relating to Ms Lattouf; and on 19 December 2023, they had jointly made the decision that Ms Lattouf would remain on air until the end of the week.

Mr Oliver-Taylor's evidence was that by Wednesday 20 December 2023, the pressure to remove Ms Lattouf was building, and the position to keep Ms Lattouf on air was becoming harder and harder to maintain. The Court accepted that the pressure came from the influx of complaints about the ABC’s employment of Ms Lattouf; Ita Buttrose’s (Board Chair) and Mr Anderson’s "trenchant criticism" of Mr Oliver-Taylor and his team for the engagement of Ms Lattouf; and The Australian having indicated it was writing a story about Ms Lattouf’s employment with the ABC.

His Honour accepted that the pressure felt by Mr Oliver-Taylor must have been amplified by discovering that on Tuesday, 19 December 2023, Ms Lattouf had made the HRW Post, which was different to her previous social media posts because it was made while she was an ABC employee, leaving the ABC exposed to "the inevitable criticism - whether fair or unfair - for permitting one of its presenters to make a controversial post and then allowing her to remain on air".

On 20 December 2023, Mr Oliver-Taylor sent a text to Mr Anderson advising that he had "no option but to stand her down. Call me if you can, but if not possible, I will action within the hour". He also sent an email to others indicating that he was "expecting the recommendation to be that [ABC] will not continue with her remaining two shifts as a result of this breach". Together, these communications suggested that Mr Oliver-Taylor was contemplating that Mr Anderson would be involved in the final decision.

However, shortly after, Mr Oliver-Taylor sent a further text message saying, "I’m going to action this now and try and beat [The Australian’s] story”, indicating he had made a decision. Mr Oliver-Taylor had a subsequent telephone call with Mr Anderson, in which the Court found that Mr Anderson was simply confirming that he understood the course of action proposed by Mr Oliver-Taylor, rather than Mr Anderson approving or being the one to make the decision. On this basis, the Court found that Mr Oliver-Taylor was ultimately the person who made it.

Did the ABC terminate Ms Lattouf's employment because of her race and national extraction?

After the furore that surrounded the ABC's (subsequently withdrawn) defence that Ms Lattouf's racial discrimination case should fail because she had not proved that there was a Lebanese, Middle-Eastern or Arab race or national extraction, this issue was ultimately dealt with in very brief terms by the Court, with Justice Rangiah finding that the evidence did not support Ms Lattouf's claims that the reasons for the termination of her employment included her race or national extraction.

Did the ABC terminate Ms Lattouf's employment because of her political opinions?

The ABC argued that the reasons for Mr Oliver-Taylor's decision to take Ms Lattouf off air were comprised of:

• his view that Ms Lattouf’s HRW Post on Tuesday, 19 December 2023 meant she may have breached the ABC’s policies or guidelines;
• his view that Ms Lattouf had not complied with a direction given to her in relation to her use of social media; and
• his loss of trust and confidence in Ms Lattouf to present live radio in accordance with directions issued to her,

and that he did not take into account any political opinions held by Ms Lattouf.

The Court rejected that these were Mr Oliver-Taylor's reasons for the decision.

In respect of the argument that Ms Lattouf was taken off air because she had not complied with a direction, the evidence showed that Mr Oliver-Taylor understood that no actual direction had been given to her, merely that Ms Lattouf had been requested not to post anything controversial about the Israel/Gaza war. In fact, when Ms Lattouf asked ABC about posting information from reputable sources (such as an Amnesty International Report on 18 December 2024), she was advised that she was permitted to post content that was from a verified source.

The Court also assessed whether Mr Oliver-Taylor took into account the political opinions that Ms Lattouf may have had in arriving at his decision to dismiss her. The Court accepted that Ms Lattouf held political opinions including opposing the Israeli military campaign in Gaza, supporting Palestinians' human rights and that media organisations should report about the conflict between Israel and Palestinians accurately and impartially.

Judge Rangiah was satisfied that the protection against termination for political opinion under section 772 encompasses not only holding a political opinion, but also expressing it.

The Court found that the ABC failed to discharge the "reverse onus" (as applies in general protections claims) and inferred that Mr Oliver-Taylor made the decision for the following reasons.

• First, Mr Oliver-Taylor thought Ms Lattouf engaged in misconduct by posting about the Israel/Gaza war whilst she was an ABC employee when she had been advised or requested not to do so, and that by making the HRW Post, Ms Lattouf was expressing support for the view that Israel was adopting starvation tactics in Gaza.
• Secondly, Mr Oliver-Taylor believed that Ms Lattouf had expressed a biased view about the Israel/Gaza war by making the HRW Post and therefore, he suspected that she had engaged in misconduct by breaching some editorial ABC policy or guideline.
• Thirdly, Mr Oliver-Taylor understood that the ABC would face accusations of supporting and facilitating Ms Lattouf's opinion that Israel was adopting starvation tactics in Gaza. In that respect, the Court found that "the decision was made to appease pro-Israel lobbyists who would inevitably escalate their complaints about the ABC employing a presenter they perceived to have anti-Semitic and anti-Israel opinions in such a public position".
• Fourthly, he thought that taking Ms Lattouf off air might mitigate the damage to ABC's reputation. Whilst this was found to be a substantial or operative reason for Mr Oliver-Taylor's decision, it was not the only one.

Each of the first three reasons for terminating Ms Lattouf's employment were interconnected with Ms Lattouf having made the HRW Post. It was, therefore, found that that Ms Lattouf's expression of her political opinion - being opposition to the Israeli military campaign in Gaza in the HRW Post - was a substantial and operative reason for the decision, in breach of section 772(1) of the FW Act.

Finally, the Court highlighted that the ABC did not submit that it was an inherent requirement of Ms Lattouf's role to ensure the impartial presentation of information and to be perceived by the public as impartial, despite section 8(1)(c) of the Australian Broadcasting Corporation Act 1983(Cth) stipulating that the Board of ABC has a duty "to ensure that that the gathering and presentation by the [ABC] of news and information is accurate and impartial according to the recognised standards of objective journalism". This is noteworthy given that an employer will not contravene section 772(1)(f) of the FW Act where the reason for dismissal is based on the inherent requirements of the role. However, because the ABC did not plead this in response to Ms Lattouf's claim, the Court did not consider this argument.

Relief

In addition to declaring that the ABC had contravened section 50 and section 772 of the FW Act, the Court made orders that:

• the ABC pay Ms Lattouf compensation for non-economic loss of $70,000;
• the matter be set down for hearing to determine the question of whether the ABC should be ordered to pay pecuniary penalties, and if so, in what amount.

Bottom line for employers

Although considering the infrequently used section 772 unlawful termination provision of the FW Act rather than section 351 (the general protections provision prohibiting discrimination), as found by Justice Rangiah the similarity between these provisions makes this decision instructive for employers in how not to make decisions when issues of political opinion or other protected attributes are involved. Decisions made hastily in response to external pressures may fall short of the FW Act.

Employers need to unequivocally communicate their expectations of employees when it comes to social media in the form of clear and specific directions. This is particularly important when it comes to employees in high-profile roles or who may be engaging in discourse on matters of political and humanitarian concern.

The decision makes clear that the prohibition on discrimination based on political opinion not only protects of the holding of an opinion, but extends to the expression of political opinion. It also serves as a reminder for employers of the need to comply with enterprise agreement and policy/procedural obligations before taking disciplinary action, even in relation to casual or contract employees.