Unlawful dismissal for expressing political opinions on social media

What happened in this case?

Ms Lattouf was engaged on a casual basis to host the ABC Radio Sydney Mornings show for five days.

During that engagement, Ms Lattouf reposted a Human Rights Watch video, titled “The Israeli Government is using starvation as a weapon of war in Gaza”, on her social media. The ABC received complaints about the post, suggesting that Ms Lattouf held antisemitic views and lacked impartiality.

ABC management removed Ms Lattouf from her remaining shifts and told her to leave the premises. No formal allegations were put to her, and she was not given an opportunity to respond.

Ms Lattouf claimed that she had been dismissed because of her political opinion, race or national extraction.

The ABC claimed that Ms Lattouf had not complied with a direction not to post anything about the Israel-Palestine conflict; that she had contravened the ABC’s ‘Personal Use of Social Media Guidelines’; and that she was taken off air to “mitigate damage to the ABC’s reputation for impartiality”.

Unlawful termination claim

Section 772 of the Fair Work Act 2009 (Cth) (Fair Work Act), which has had limited judicial consideration to date, provides that an employer must not terminate an employee’s employment for a reason or reasons that include one or more protected attributes, which relevantly includes political opinion, race and national extraction (section 772(1)(f)).

Where an application is made for contravention of that provision, the employer has a reverse onus of proof. That is, it is presumed that the action was taken for a prohibited reason unless the employer proves otherwise.

Court findings

In summary, Justice Rangiah found that:

1. The ABC’s decision to take Ms Lattouf off air was a termination of her employment, within the meaning of the Fair Work Act.
2. While he accepted that protection of the ABC’s reputation was a reason for the decision, he found that Ms Lattouf’s expression of political opinion was also a substantive or operative reason, which contravened section 772(1) of the Fair Work Act.
3. He rejected the claim that that the ABC terminated Ms Lattouff’s employment because of her race or national extraction.
4. The ABC had contravened the ABC Enterprise Agreement 2022-2025, and therefore section 50 of the Fair Work Act, by failing to provide her with details of the allegations against her and giving her an opportunity to respond.

Justice Rangiah rejected the ABC’s argument that it had directed Ms Lattouf to refrain from posting controversial content about the Israel-Palestine conflict, finding that she had only been ‘advised’ to be careful about what she posted. Further, he did not accept that Ms Lattouf had contravened the ABC’s social media guidelines.

The Court ordered the ABC to pay Ms Lattouf $70,000 as compensation for non-economic loss (being distress and reputational harm), with costs and pecuniary penalties to be decided.

Political opinion

In his decision, Justice Rangiah explored the distinction between the ‘holding’ of a political opinion, and the ‘expression’ of a political opinion. He noted that it is unlikely that section 772(1)(f) of the Fair Work Act intended to exclude the protection of ‘expression’ of a political opinion and found it encompasses “the opinion of an employee about the policies or actions of the government of a country or its armed force”.

The Court therefore confirmed that a political opinion for the purpose of section 772 of the Fair Work Act includes both the holding and expression of a political opinion.

Key takeaways for employers

This decision highlights the need for employers to take care when considering disciplinary action associated with an employee’s social media posts or other expressions of political opinion, so as to ensure procedural fairness and avoid inadvertent contravention of the protections set out in section 772 of the Fair Work Act.

Even where the reason for dismissal involves a breach of social media or out-of-office policies, which are designed to protect the reputation of the employer, such decisions may be scrutinised by the Courts and Fair Work Commission.

While an employer may feel pressured to deal with a matter quickly, making a decision in haste increases the risk of the decision being subject to challenge, which may result in cultural and reputational damage itself.

As with general protections applications, it is important to appreciate that casual and short term employees may also be entitled to make a claim based on contravention of these provisions.

Employers may wish to review their social media and out-of-hours policies and directions, to ensure that they are clear in their language and force, and do not inadvertently rely on prohibited grounds for disciplinary action.

Given the complexities around termination of employment under the Fair Work Act, we recommend that employers seek appropriate advice before commencing disciplinary action. The Workplace Advisory and Disputes team at Gadens regularly provides advice about employment contracts, dismissal and is able to assist you with any queries.

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Authored by:
Sarah Toohey, Partner
Taylah Thomas, Seasonal Clerk