Case Summary and Outcome

The Federal Court of Australia held that the Australian Broadcasting Corporation unlawfully terminated journalist Antoinette Lattouf’s employment for reasons including political opinion. The case arose from the removal of the journalist from her role after reposting a Human Rights Watch report critical of Israel’s military campaign in Gaza, which led to a coordinated complaint campaign pressuring her employer. The Court found that the termination contravened a statutory provision protecting employees from dismissal on grounds including political opinion. The Court reasoned that employment law protects both the holding and expression of political opinion, and that an employer cannot dismiss an employee for such reasons, even if citing concerns about impartiality. The Court further found that the employer breached its enterprise agreement by denying procedural fairness before taking disciplinary action. The Court awarded Ms Lattouf AUD 70,000 (approx. USD 46,238) in compensation for the non-economic loss suffered as a result of the unlawful termination.

Facts

The applicant, Antoinette Lattouf, is a freelance Australian journalist of Lebanese descent. In December 2023, she was engaged as a casual employee by the respondent, the Australian Broadcasting Corporation (ABC), to present a radio program for five days. During this period, Israel’s military campaign in Gaza was a highly contentious issue, becoming one of the most divisive news stories worldwide. Competing claims of bias were made against major media outlets. In Australia, the issue provoked heated public debate, rallies, and online campaigns. Acts of vilification, doxxing, and organised “cancelling” of journalists and commentators were common.

Ms Lattouf had a history of social media posts expressing views critical of the Israeli military campaign and supportive of Palestinian rights. Soon after her first broadcast, ABC senior management, including the Managing Director and the Chair, began receiving a high volume of similar complaints from members of the public alleging that she held antisemitic views, lacked impartiality, and was unsuitable to present any ABC program.

The complaints caused significant concern among ABC senior management. Ms Lattouf was subsequently given what the ABC later described as a “direction” not to post any material on social media that might suggest she lacked impartiality on the Israel–Gaza issue. On Wednesday, 20 December 2023, ABC managers learned that Ms Lattouf had, the previous day, reposted a Human Rights Watch (HRW) video on her Instagram account. The post, titled “The Israeli Government is using starvation as a weapon of war in Gaza,” was accompanied by her caption, “HRW reporting starvation as a tool of war.” She was summoned to a meeting, informed that she had shared a controversial post and breached ABC policies, told she would not be required for her two remaining shifts, and asked to leave the premises. She was given no opportunity to respond to the allegations.

Ms Lattouf filed an application in the Federal Court alleging that the ABC contravened section 772(1)(f) of the Fair Work Act 2009 (Cth) (FWA), which provides that “an employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons: … (f) … political opinion, national extraction.” [para. 34] She also claimed that the ABC breached section 50 of the FWA by contravening the procedural fairness clauses (55.2.1 and 55.4.1) of the ABC Enterprise Agreement 2022–2025. [para. 38] She alleged that her employment was terminated because she held and expressed political opinions opposing Israel’s military campaign in Gaza.

Decision Overview

Justice Rangiah delivered the decision. The primary issues before the Court were whether the ABC terminated Ms Lattouf’s employment for reasons including her political opinion, contrary to section 772(1)(f) of the FWA, and whether the ABC breached its enterprise agreement by denying procedural fairness, contrary to section 50 of the FWA.

Ms Lattouf contended that her dismissal was because she held and expressed political opinions opposing the Israeli military campaign in Gaza, as well as because of her race and nationality. She asserted that her political opinions included opposing the Israeli military campaign in Gaza, supporting Palestinians’ human rights, questioning the authenticity of footage of demonstrators chanting antisemitic chants at the Sydney Opera House, and advocating that media organisations should report on the conflict between Israel and Palestinians accurately and impartially. [para. 39] She maintained that these views were lawful expressions of political opinion and that her removal from the air was a direct response to those beliefs, contrary to the protections afforded under the FWA.

Ms Lattouf further argued that the ABC’s decision amounted to an unlawful termination rather than a mere alteration of her duties, as she was informed that she would “not be returning to complete her last two shifts on air.” She claimed that the ABC’s stated reasons—that she had breached social media guidelines and failed to comply with a direction—were a pretext, and that the real reason was pressure from “pro-Israel lobbyists” who had orchestrated a campaign to have her taken off air. [para. 39] She also argued that no genuine misconduct had occurred, as her repost of the Human Rights Watch video was factual, had already been reported by the ABC itself, and did not violate any express directive.

In addition, Ms Lattouf alleged that the ABC contravened section 50 of the FWA by failing to comply with the disciplinary procedures set out in the ABC Enterprise Agreement 2022–2025. Specifically, she claimed that the ABC did not notify her of the nature of the alleged misconduct nor provide an opportunity to respond before removing her. [para. 39] She asserted that the ABC’s conduct constituted a denial of procedural fairness and a breach of its contractual and statutory obligations. Accordingly, she sought declaratory relief, compensation for non-economic loss, and the imposition of pecuniary penalties against the ABC. [para. 12]

On the other hand, the ABC contended that it did not terminate Ms Lattouf’s employment, asserting instead that her engagement concluded by “effluxion of time at the conclusion of the rostered shift on Friday, 22 December 2023.” [para. 40] The ABC maintained that Ms Lattouf had been engaged as a casual employee for a fixed period and that it was contractually entitled to alter or discontinue her duties at any time. It further argued that the decision not to require her to present the final two shifts did not amount to termination, but rather constituted a lawful exercise of managerial discretion under the terms of her engagement. [para. 40]

The ABC also denied that Ms Lattouf’s removal was influenced by her race, national extraction, or political opinion. It argued that the decision was made solely by the Chief Content Officer, Christopher Oliver-Taylor, for operational reasons, namely a loss of trust and confidence after she posted about the conflict despite being advised not to do so, and that her political opinions were irrelevant. The ABC denied that any disciplinary process was required under the ABC Enterprise Agreement 2022–2025, asserting that no formal allegation of misconduct had been made and that the clauses governing dismissal procedures were inapplicable. It argued that the FWA was not contravened because there had been no termination, no disciplinary breach, and no adverse action taken for a prohibited reason. [paras. 40–41]

The Court began by clarifying that the expression “political opinion” in section 772(1)(f) should be construed broadly, consistent with anti-discrimination principles and international conventions referenced in the FWA, specifically the ILO Discrimination (Employment and Occupation) Convention (No. 111). It cited ILO commentary establishing that protection against discrimination on the basis of political opinion “implies that this protection shall be afforded … in respect of activities expressing or demonstrating opposition to the established political principles.” [para. 128] Citing Sayed v Construction, Forestry, Mining and Energy Union, the Court stated that “the expression ‘political opinion’ … encompasses the opinion of an employee about the policies or actions of the government of a country or its armed forces.” [para. 110] It found that Ms Lattouf’s views—opposing Israel’s military campaign in Gaza, supporting Palestinian human rights, and advocating for accurate media reporting—were clearly political in character. [paras. 112–116]

Crucially, the Court held that section 772(1)(f) protects both the holding and the expression of political opinions, and that it was “quite unlikely” Parliament intended to exclude expression from the protection afforded by the provision, given that “the expression of an opinion is the most natural and frequent way in which a political opinion is manifested.” [para. 124] Protecting only unexpressed opinions would be “pointless.” [para. 127] The Court drew further support from Convention No. 111, which explicitly protects workers’ activities expressing opposition to established political principles. [para. 127]

The Court then examined whether Ms Lattouf’s employment was terminated. It rejected the ABC’s submission that there had been no termination and that it had merely exercised a contractual right to change her duties, focusing instead on the practical reality of the employment relationship. Justice Rangiah affirmed that statutory termination refers to the ending of the employment relationship, not merely the contract, noting: “In my opinion, the phrase ‘terminate an employee’s employment’ refers to termination of the employment relationship.” [para. 409] Objectively, Ms Lattouf was told she would not perform her remaining shifts, was instructed to leave the premises, and was not allocated alternative work. Subsequent payment for the final days did not negate the termination. From the perspective of the employment relationship, her service ended on 20 December 2023 at the ABC’s initiative.

The Court further assessed who made the termination decision and why. It found that Mr Oliver-Taylor was the sole decision-maker, but that his reasoning was influenced by the context created by senior executives and the complaint campaign. [paras. 135, 487–489] The complaints created pressure and framed Ms Lattouf’s conduct as politically partial. The Court rejected Mr Oliver-Taylor’s evidence that he did not consider Ms Lattouf’s political opinions, finding it inconsistent with contemporaneous documents and the overall evidence. [para. 360] His reference to her “holding views which were potentially impartial” demonstrated that the decision was influenced by disagreement with the substance of her political opinions. [para. 621] The Court emphasised that there is often no clear line between holding and expressing an opinion, and that attributing such an opinion to an employee and acting upon it constitutes discrimination for a prohibited reason. [para. 618]

Justice Rangiah concluded that a substantial and operative reason for the termination of Ms Lattouf’s employment was that she held, and was perceived to hold, political opinions contrary to those of the pro-Israel lobbyists whose complaints were being pressed upon ABC managers. [para. 631] The ABC therefore contravened section 772(1) of the FWA.

On the second issue, the Court held that the ABC made allegations of misconduct against Ms Lattouf—namely breaching policies and ignoring management advice—but failed to follow the required procedural steps in its Enterprise Agreement. The ABC did not notify her in writing of the allegations, the process to be followed, or her right to representation, nor did it provide her with an opportunity to respond. [para. 649] The Court held that the ABC’s restrictive construction of the clause was inconsistent with its purpose, which required fairness before determining allegations. [paras. 643–644] Even if the conduct did not amount to dismissal, excluding Ms Lattouf from the workplace was not a permitted disciplinary measure under clause 55.4.1 and therefore breached the Agreement. [paras. 654–655] Accordingly, the ABC contravened section 50 of the FWA.

For relief, the Court awarded Ms Lattouf AUD 70,000 in compensation for non-economic loss pursuant to section 545(2)(b) of the FWA. Justice Rangiah relied on James Cook University v Ridd and Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd, affirming that compensation for distress or humiliation may be awarded where causally linked to a contravention. [paras. 662–663] The Court accepted expert evidence diagnosing Ms Lattouf with an exacerbation of persistent depressive disorder resulting from the termination and the surrounding publicity. [paras. 676–678] While other stressors were acknowledged, a sufficient causal nexus was established.

The Court declared that the ABC had contravened sections 772(1)(f) and 50 of the FWA and ordered compensation. A separate hearing was scheduled to determine any pecuniary penalty.