The case of journalist, Antoinette Lattouf v the ABC set a precedent for freedom of expression in employment law which affects all Australian workers and rightly so, writes Commercial Litigation Special Counsel, Jade Carlson.
In a high-profile case which cost the ABC more than $1.1 million dollars to defend, former ABC journalist and presenter, Antoinette Lattouf recently won a significant employment law dispute.
The judge in her Federal Court case, Justice Darryl Rangiah, found ABC had violated the Fair Work Act by dismissing her “for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza.”
Ms Lattouf was removed from her job at ABC late last year whilst in the middle of a five-day presenting job, after she shared a post on her personal Instagram account which highlighted concerns about what was happening in Gaza. She didn’t write the post herself but re-shared content from human rights organisation, Human Rights Watch.
The journalist responded by taking legal action against her former employer, using protections provided to employees by the Fair Work Act 2009. Whilst most people might be aware of unfair dismissal claims, this was not the legal avenue Ms Lattouf pursued, perhaps because claims for unfair dismissal require a minimum employment period of six months.
The journalist instead lodged a claim for unlawful termination under section 772 of the Fair Work Act 2009; rights which are enshrined in the Fair Work Act regardless of how long a worker has been employed.
An employee can file an unlawful termination application when the employee’s employment has been terminated for a prohibited reason, and the person is either not a national system employee or the employee is unable to make a general protections claim. The prohibited reasons include race, being temporarily away with an illness or injury, filing a complaint, or expressing a political opinion.
Ms Lattouf asserted she was dismissed because of her race and political opinion. The ABC denied the claim and argued she had breached the organisation’s social media policy by reposting the content from Human Rights Watch which they say, she had been advised not to post due to concerns around impartiality. They said her actions therefore justified her removal from the presenter role.
The court heard the detailed actions and communications of high-profile ABC executives who were instrumental in the sacking of Ms Lattouf, including former ABC Chair, Ita Buttrose. Such notoriety inevitably bringing with it more public interest than might be expected of a standard general protections case.
In his judgement, Justice Rangiah found ABC breached two sections of the Fair Work Act; failing to protect Lattouf from discrimination due to her political opinions and failing to give her due process when she faced termination. He did not find Ms Lattouf was discriminated because of her race.
The case has been closely watched by employment lawyers, employers and employees alike, raising important questions and debates about how far an employer can go in policing what employees say or do outside of work.
Of particular relevance for the general public would be considerations around what level of regulation of expressions of opinion, often displayed routinely on social media, is acceptable towards an employee.
As a Special Counsel in Commercial Litigation, I have taken on employment law disputes based on unlawful termination and general protection rights. I welcome clear guidance on the expectations of employer/employee relations.
I see the judgement as an opportunity for employers to properly understand the employee protective provisions under the Fair Work Act. Employers should ensure their consultation and termination procedures align with the requirements under the Fair Work Act, and carefully ensure they are not terminating the employee for a prohibited reason.
Employees should also take acute notice of this case and the considerations for their own employment rights, however unrelatable they may seem for a job which is out of the spotlight.
Make no mistake, Ms Lattouf’s case benefits every worker in Australia who can now take advantage of the precedent from her very public battle to define a boundary and stop employer led policies dictating the actions for employees in their personal life or worse, being able to punish them for it.
A win for Ms Lattouf has been a win for every Australian employee.
