Justice Rangiah of the Federal Court recently found that the ABC had discriminated against Antoinette Lattouf when it terminated her for holding and expressing a political opinion. Much has been said and written about this high-profile case, but in this article we will consider what impact this has on future discrimination cases, and what lessons employers should take away.

Background

Ms Lattouf had been employed by the ABC on 18 December 2023 under a casual employment contract to host news programming for 5 days. Ms Lattouf had been advised and requested (though His Honour found that she was not directed) to refrain from posting anything on social media that would suggest her opinion on the state of the Israel/Gaza war. However, on 19 December 2023, Ms Lattouf ‘reposted’ to her Instagram account, a video from the organisation Human Rights Watch that indicated Israel was intentionally starving civilians in Gaza, adding her own words to the post stating “HRW reporting starvation as a tool of war“.

On 20 December 2023, ABC managers became aware of Ms Lattouf’s posts and made the decision to remove her from the air for her two remaining shifts. She was called into a meeting and informed that the post she had shared “could be considered contraversial“, that by reposting it she had breached the ABC’s policies, and she would not be required for her remaining shifts. The ABC did not provide particularised allegations, did not identify the policies that had been breached and did not provide Ms Lattouf any opportunity to respond.

Ms Lattouf subsequently filed a claim that the ABC terminated her employment for reasons including her political opinions, race and national extraction and that, in so doing, the ABC had breached s772(1)(f) of the Fair Work Act 2009 (Cth) (FW Act) as well as the terms of the ABC Enterprise Agreement 2022 – 2025 (ABC EA) under which she had been employed in so far as it had not complied with the requisite process for an allegation of misconduct.

Ms Lattouf’s pleadings

Ms Lattouf’s application pleaded that she is a journalist of Lebanese and Middle Eastern descent, who had been publicly outspoken (prior to her employment with the ABC) against Israel and in support of Palestine, and had vocally advocated for impartial media coverage of the conflict. Ms Lattouf also pleaded that ABC leadership had received a significant number of complaints about her employment, urging for her dismissal. Ms Lattouf acknowledges that she was advised to “keep a low profile” on social media, but was not given any directions regarding what she could or could not post.

In its decision to remove her from her remaining shifts, Ms Lattouf claimed that the ABC had terminated her employment, for unlawful reasons, and that by doing so summarily, they had breached various clauses of the ABC EA, which provided the process for termination, including providing an opportunity for response, and the definition of serious misconduct, which Ms Lattouf claimed was not met, causing the ABC to be in breach.

ABC’s response

In its defence, the ABC denied Ms Lattouf’s allegations and stated that due to her casual employment, the ABC could unilaterally vary the terms, duration and hours of her engagement without notice. Further, they claimed that Ms Lattouf had been directed not to post on social media regarding the Israel/Gaza war during her employment and that, by sharing HRW’s post, she had breached this lawful and reasonable direction. The ABC simultaneously claimed that it did not terminate her employment, nor allege she had engaged in serious misconduct. Instead, it argued that it simply required her not to attend her shifts, and her employment ended by the natural effluxion of time at the end of her would-be shift on Friday 22 December.

As the ABC claimed that it did not terminate her, it argued that it was not in breach of s772 of the FW Act, nor was it required to comply with the process in clause 55.2 of the ABC EA, and further that its actions in not requiring to attend the balance of the shifts for the week were lawful as Ms Lattouf had acted in breach of a lawful and reasonable direction and ABC’s policies. This decision, the ABC argued, was unrelated to Ms Lattouf’s political opinions, race or national extraction.

The Court’s decision

In reaching his decision, His Honour considered four key questions:

1. Was Ms Lattouf’s employment terminated at the ABC’s initiative?
2. If so, who made the decision to terminate the employment?
3. Was the decision to terminate based on, or influenced by, Ms Lattouf’s race, national extraction or political opinion?
4. Having found that the decision was not related to her race or national extraction, was there any reason for the termination that did not include her expressed political opinion?

His Honour found the answers to the first three questions as follows: yes, the ABC had terminated the employment (finding they had repudiated and ultimately terminated the contract), that the decision to terminate was that of Mr Christopher Oliver-Taylor, ABC’s then-Chief Content Officer, and that the decision to terminate was not contributed to by Ms Lattouf’s race or national extraction.

However, on the basis that His Honour found the employment was terminated by the ABC, it further found that the decision to terminate was based on Ms Lattouf’s expressed political opinion, and that there was no other reason for the termination. His Honour rejected the ABC’s argument that Ms Lattouf had breached a direction, going further to say they knew they had not issued any such direction, nor did His Honour accept that breach of policy or loss of trust and confidence were considered in the decision to terminate.

Accepting that Mr Oliver-Taylor was in a difficult position, His Honour found that, as there had been no direction, and no more than a suspicion of breach of policy, any reason given for the termination was directly tied to Ms Lattouf’s sharing of the HRW post, and therefore in breach of s772 of the FW Act. Furthermore, by doing so without informing Ms Lattouf of the content of the allegation, or any opportunity to respond, the termination was in breach of the ABC EA.

Key takeaways

Whilst it may be tempting to view this decision as a strong protection of freedom of speech (or more accurately, implied freedom of political expression), that was not His Honour’s reasoning, and this decision does little to extend or enshrine any speech rights. It does however provide some guidance for employers seeking to manage the tricky issue of private social media usage by employees.

His Honour’s decision was ultimately rooted in the failings of the ABC to issue a lawful and reasonable direction, and to provide procedural fairness to its employee in undertaking a disciplinary process that resulted in termination (as required by the ABC EA). In fact, His Honour was explicit that Ms Lattouf’s actions were “ill-advised and inconsiderate” to the ABC, and that if she had been directed not to share such content, such direction would likely have been lawful and reasonable. However, no direction was given (merely advice), and no policy was identified, either internally or to Ms Lattouf, as having been breached. It is likely the ABC still would have been found to have breached the ABC EA in its process.

Therefore, in reading this case and considering its application, employers should take away the following:

• Having clear, relevant and comprehensive policies and procedures on matters including social media, and communicating those policies to employees at commencement, and throughout the employment, is imperative. Revise and update your policies if necessary to ensure that they are fit for purpose (noting that the ABC issued revised Public Comment Guidelines on 20 August 2025, as a direct consequence of this case);
• You can direct your employees to do, or not do, certain things, however such direction must be lawful, reasonable and clearly communicated. If issuing such a direction, it is preferable that it be in writing, and substantiated as to why it is given including by reference to relevant policies, particularly if you intend to rely on any breach to dismiss an employee;
• When engaging in disciplinary processes, you must ensure the employee is given sufficient detail of the allegations, and adequate time to consider and respond, before any decision is made and action taken, and that any applicable industrial instruments are complied with; and
• In circumstances where there is a risk that disciplinary action against an employee could be seen as being linked to a protected attribute (such as an expression of political opinion), exercise caution before acting. Ensure that you have a lawful basis to take the action (for example breach of policy or Code of Conduct) and that you have complied with any requisite processes before taking the proposed steps.

This article was written by Karli Evans, Partner, and Dustin Grant, Senior Associate.