The recent case brought by reporter Antoinette Lattouf against the ABC highlights the risk to employers of mishandling dismissals, especially where protected attributes, such as political opinion, are in play.
These days, employers are expected to be more than just providers of work and income. Stakeholders will often demand that a business embodies certain values or aligns with community standards. In response a business may decide to promote uncontroversial environmentally friendly practices, such as arranging for recycling bins in the office lunchroom, at other times it might enforce a social inclusion policy that runs counter to an employee’s religious beliefs. In complying with these types of expectations, many well-meaning organisations come into conflict with the rights of their employees.
In Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 (the Lattouf case) the Federal Court has passed down a significant ruling that offers clarification on unlawful termination, political opinion in the workplace, and the obligation to follow procedural fairness under the Act. Employers should note that not much sympathy was spared for our national broadcaster’s attempt to uphold a politically impartial position: individual employees have protected rights under the Act, and if an employer cannot give credible reasons as to why an employee was dismissed, the Court may infer an unlawful motive, especially if the employee had recently expressed a protected belief or made a complaint.
What happened
In the months following the Hamas-led attack on Israel on 7 October 2023, the ensuing conflict in Gaza has dominated global headlines becoming one of the most polarising issues in public discourse. Amid this media storm, journalist Antoinette Lattouf, an Australian of Lebanese heritage known for her active social media presence, was engaged by ABC Radio Sydney on a five-day casual contract.
Soon after her first report on 18 December 2023, the ABC received complaints from members of the public alleging Lattouf had expressed ‘anti-Semitic views on her social media, lacked impartiality, and was unsuited to present any program for the ABC.’ As a result of these complaints, arguably the product of a concerted email campaign by pro-Israel lobbyists, the Content Director of the program advised Lattouf that it would be best to avoid publishing content about the war, at the same time indicating that posting fact-based material from a verified source would be fine.
On 19 December 2023, Lattouf reposted on her Instagram account a Human Rights Watch video titled “The Israeli Government is using starvation as a weapon of war in Gaza”, adding the words, “HRW reporting starvation as a tool of war”. The next day, upon becoming aware of this post, ABC managers called Lattouf into an office and informed her she had shared a post that could be considered controversial and in so doing had breached the ABC’s policies. She was told that she would not be required for her two remaining shifts and to leave the premises.
Importantly, the policies she was alleged to have breached were not identified, nor was she given any opportunity to defend herself against the allegations.
Lattouf brought an unlawful termination claim against the ABC in the Federal Court, claiming:
- In breach of section 772(1)(f) of the Act which provides an employer must not terminate an employee’s employment for reasons which include political opinion, race or national extraction, the ABC terminated her employment for exactly those reasons; and
- In breach of section 50 of the Act which provides a person must not contravene a term of an enterprise agreement, the ABC failed to comply with its obligations under the ABC Enterprise Agreement 2022–2025, including by failing to give her an opportunity to respond to allegations of misconduct made against her
Reverse onus of proof
In cases like this where an employee alleges there has been a breach of section 772 of the Act and their employment has been terminated because of their political opinion, section 783 of the Act places the onus of proof on the employer to show that the termination was not for the reasons alleged.
Via various witnesses, including the key decision-maker, namely, the ABC’s Chief Content Officer, the ABC claimed its decision to remove Lattouf from her duties was because she had ignored a direct instruction given to her in relation to her use of social media and her 19 December post breached the ABC’s policies and guidelines.
However, the Court found there was no evidence that a direct instruction had been given to Lattouf about social media posts, and inconsistencies in the ABC’s internal communications suggested the reason for Lattouf’s dismissal was because she held a political opinion opposing the Israeli military campaign in Gaza. The ABC’s view appeared to be strongly influenced by external pressure from sections of the public.
The court looked at contemporaneous text and email communications and evidence adduced from the examination of ABC management. The Court recorded that with respect to several key ABC witnesses, it had substantial doubts as to the reliability and credibility of their evidence on controversial matters. This led to the finding by Justice Rangiah that the ABC failed to disprove that Lattouf’s political opinion played a role in her dismissal. Further, the court found that the ABC failed to comply with its own Enterprise Agreement in the management of Lattouf’s termination.
Lattouf was awarded $70,000 in compensation for non-economic loss. A separate hearing will address potential penalties under the Act.
Implications for Employers
This is not a case about freedom of speech in general but rather about statutory protections given to employees under section 772 of the Act, breach of which may result in an unlawful termination of an employee’s employment by an employer.
Section 772 of the Act prohibits an employer from dismissing an employee because the employee exercised a workplace right, including taking sick leave, making a complaint, being a member of a union, or because of their race, colour, sex, sexual orientation, religion, or political opinion. The grounds on which employment must not be terminated under section 772 are quite extensive and these general protections are merely a few examples.
The threshold to trigger a claim is low, even a perceived connection is enough. Importantly, the onus of proof is on the employer, to show the reason for the employee’s dismissal was not because an employee exercised a protected workplace right or had protected attributes as defined in section 772.
The Lattouf case demonstrates how poorly managed decision-making, unclear communications, and failure to document reasoning can leave employers vulnerable in defending such claims, even if they believe they acted lawfully.
Key takeaways
Employers must tread carefully, respect procedural safeguards, and avoid allowing reputation-driven haste to override employees’ rights. Specifically, employers must note:
- Application of the law: Many employers assume that only ‘long-term’ employees are protected from dismissal, given the qualifying periods under unfair dismissal laws. However, general protections under the Act apply from day one of employment. This includes protection from dismissal for reasons such as political opinion, race, sex, and other attributes listed in section 772.
Engaging a worker casually or for a short stint does not remove an employer’s obligations under the Act or an enterprise agreement. In this case, even a five-day engagement triggered protections.
- Political opinion is a protected attribute under the Act. Both in the Lattouf case and in Shaun Turner v Darebin City Council [2025] FWC 1763 the Federal Court and the Fair Work Commission (the FWC) grappled with how to deal with dismissals related to the expression of political opinion.
In the case of Turner, his employment was terminated for expressing the view that Acknowledgements of Country are ‘at risk of overuse’, a position that breached his employer’s policies. The FWC, not convinced that this constituted a valid reason for Mr Turner’s dismissal, disagreed with the employer’s proposition that ‘there will be a valid reason for dismissal if an employee fails to act in complete deference to their employer’s views and, moreover, does not adopt them’.
- Out of hours conduct: Employers can no longer use ‘reputation management’ to discipline employee’s conduct outside employment hours even if there is a risk the employee’s conduct will damage a business’ reputation.
In Lattouf’s case, although Justice Rangiah recognised the unique position of the ABC as a public broadcaster, where maintaining the perception of impartiality is critical, this context did not alter his Honour’s conclusion that Lattouf’s dismissal was unlawful. The judgment makes clear that an employer’s desire to uphold a particular political or impartial image does not, on its own, justify significant interference with an employee’s lawful conduct outside the workplace.
- Lawful and reasonable directions: Employers seeking to control off-duty expressions, especially political ones, must ensure any directions are clear, lawful, reasonable, and enforceable not vague warnings or soft suggestions. In the Lattouf case, ‘advice’ did not amount to direction.
- Independence in decision-making: Employers must ensure that decision-making processes are independent, fair, and unbiased. The decision-maker must be clearly identified and their reasons for a dismissal documented. Emails, meeting notes, and internal memos are invaluable in court. External pressures, as in Lattouf’s case, must not be a key factor in decision-making.
- Procedural Fairness: Where there is an allegation of misconduct, even if informal, an employer must exercise procedural fairness by informing the employee of allegations, allowing a fair opportunity to respond, and permitting representation during disciplinary meetings. Failure to do so may render any termination unlawful, even if a policy was arguably breached.
Further, employers must be aware of any additional requirements imposed by an Award or Enterprise Bargaining Agreement that specifically relate to an employee or their industry.
- Consistent application of policies: Selective enforcement of policies exposes employers to claims of discrimination or adverse action.
- Timing matters: Adverse action shortly after a complaint or dispute can look retaliatory unless well-explained.
- Burden of proof: The employer must show that its decision was lawful, otherwise the presumption is in favour of the employee.
How we can help
As we noted at the beginning of this blog, employers find themselves walking a tightrope between meeting stakeholder expectations and employee rights. So, when drafting codes of conduct or implementing workplace policies, it’s worth remembering that there are always multiple perspectives. If a significant portion of people- say, half – disagree with a particular stance, ask yourself: does this really need to become a workplace issue?
Practically, before removing an employee, revoking shifts, or issuing directions that touch on protected areas (such as political or religious views), it is essential to obtain legal advice. The risks of getting it wrong are significant as are the potential penalties.
If you require advice about a dismissal or need to revisit your code of conduct, call us on 1300 654 590 or email us . Pre-emptive planning can prevent costly consequences in the future.
The information contained in this post is current at the date of editing – 20 August 2025.
