Federal Court rules on significant unlawful termination case

The Federal Court of Australia today delivered a significant decision examining the protection from dismissal due to a person’s political opinion. In Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, Justice Rangiah found the applicant, Antoinette Lattouf, was unlawfully terminated from her employment by the Australian Broadcasting Corporation (ABC). His Honour ordered the ABC to pay Ms Lattouf $70,000 in compensation for non-economic loss arising from the termination. The Court will hold a separate hearing to determine whether to impose any penalties on ABC for contravening the Fair Work Act 2009 (Cth).

Ms Lattouf, a journalist and broadcaster, brought a case against the ABC alleging unlawful termination after being removed from her role as a casual presenter on ABC Radio Sydney in December 2023, just three days into a five-day stint. The ABC claimed the decision was due to a breach of its social media policy, after Ms Lattouf shared a Human Rights Watch post about the war in Gaza. On 19 December 2023, Ms Lattouf had reposted a Human Rights Watch (HRW) video report entitled, “The Israeli Government is using starvation as a weapon of war in Gaza”, on her Instagram account, adding the words, “HRW reporting starvation as a tool of war”.

Within the hour, a decision was made that Ms Lattouf would be taken off air. She was called into an office and informed she had shared a post that could be considered controversial and 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. The policies she was alleged to have breached were not identified, nor was she given any opportunity to defend herself against the allegations. That was the end of Ms Lattouf’s employment with the ABC.

Ms Lattouf argued that her dismissal for the reason of, or for reasons including, her expressing a political opinion and/or her race. Ms Lattouf alleged the ABC acted under external pressure, particularly from pro-Israel lobby groups. She said the ABC’s conduct breached the Fair Work Act’s protections against termination of employment based on political opinion and race, contained in section 772(1) of the Fair Work Act. The ABC denied these allegations.

The Court found in Ms Lattouf’s favour, stating the ABC contravened the Fair Work Act by terminating Ms Lattouf’s employment for reasons including that she held political opinions opposing the Israeli military campaign in Gaza. However, the Court rejected Ms Lattouf’s allegations that the reasons for her termination included her race or national extraction. The Court also found the ABC contravened the ABC’s enterprise agreement because it denied her the procedural fairness required by the enterprise agreement in relation to the misconduct allegations and dismissal. The breach of the enterprise agreement constituted a contravention of section 50 of the Fair Work Act.

Ms Lattouf sought an amount between $100,000 and $150,000 for non-economic loss. The ABC submitted that the Court should not award “anything more than modest compensation”. Justice Rangiah accepted Ms Lattouf’s evidence as to the distress and symptoms she experienced as a result of the termination of her employment. His Honour also accepted a medical practitioner’s opinion that the termination of Ms Lattouf’s employment and the circumstances in which it occurred resulted in an exacerbation of her underlying and pre-existing psychiatric condition. However, his Honour found Ms Lattouf’s condition was also exacerbated by other factors, including ruminations about the conflict in Gaza and the threats she received. These were not causally related to her termination. As a result, the Court found the appropriate award of compensation for Ms Lattouf’s non-economic loss is $70,000. As noted above, there will be a separate hearing on the question of what penalties may be imposed for the ABC’s contravention of the Fair Work Act.

It remains to be seen whether the ABC will appeal the decision. However, it is clear employers must avoid dismissing an employee or taking any other adverse action against an employee because of their political opinion, which can include expressions of opinion on social media about overseas conflicts. Employers should carefully review their social media policies to ensure they are fit for purpose following this decision.