ABC may face ‘significant penalties’ after ‘cancel culture’ sacking ruled unlawful

Yesterday (Wednesday, 25 June), Justice Rangiah of the Federal Court found that the ABC was in breach of the Fair Work Act by terminating Lattouf’s employment “for reasons including that she held political opinions opposing the Israeli military campaign in Gaza”.

Lattouf’s employment termination came after sharing a post on her Instagram story from the Human Rights Watch that reported the Israeli government had been using starvation “as a weapon of war”.

In his judgment, His Honour was “not satisfied” that the ABC proved “that its substantial and operative reasons for the termination of Ms Lattouf’s employment did not include that Ms Lattouf was attributed with holding a political opinion opposing the Israeli military campaign in Gaza”.

“It is apparent from observing Ms Lattouf in the witness box that the termination of her employment and the circumstances in which it occurred caused her great distress and continues to do so. That is unsurprising,” the judgment said.

“... the decision was made to appease the pro-Israel lobbyists who would inevitably escalate their complaints about the ABC employing a presenter they perceived to have anti-Semitic and anti-Israel opinions in such a public position.

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“She was dismissed on short notice. She was not given any opportunity to answer the allegations against her in circumstances where she had compelling answers to give. Any person would feel utterly dismayed and humiliated in those circumstances.”

Justice Rangiah awarded $70,000 in compensation for “non-economic loss” but said he would “make directions to bring the matter to a hearing on the question of whether any pecuniary penalty ought to be imposed on the ABC” – leaving the door open for further penalties against the broadcaster, which has already put forward $1 million in taxpayer funds towards its legal case.

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“We will seek a significant penalty,” said Maurice Blackburn Lawyers principal Josh Bornstein.

“The ABC has fought every step of the way, spending more than $1 million of taxpayer’s money. Antoinette Lattouf offered to settle the case for $85,000 in August 2024, but the ABC rejected the offer.”

“When organisations capitulate to bad faith complaints against staff, the results are often perverse. The ABC claimed that it sacked our client because she highlighted a Human Rights Watch report that was already being reported on by the ABC.”

Bornstein proclaimed that they would be pushing for “significant penalties” against the taxpayer-funded broadcaster in hopes of ensuring that similar behaviour cannot be inflicted on employees who express political opinions.

“The Federal Court will hold a hearing to determine whether the ABC will face penalties for its unlawful conduct. We will ask the court for a significant penalty in order to deter the ABC from repeating its illegal conduct in the future,” he said.

“It has been a privilege to represent Antoinette Lattouf in this important case about corporate cancel culture.”

Speaking on the result, ABC managing director Hugh Marks expressed that the overall situation was “regrettable”.

“Let’s face it, as it’s been reported, many millions of dollars have been spent that shouldn’t have been spent,” Marks said.

“If this was to come up again in the future, I think we would act on a very different basis.”

The Media, Entertainment and Arts Alliance (MEAA) – which stacked the courtroom with supporters during Justice Rangiah’s judgment – claimed the decision sent a clear message about the ABC’s failure in management.

“ABC decision-makers failed in their duty to push back against outside interference, racism and bullying,” said chief executive Erin Madeley.

“They failed every Australian who counts on the ABC to shine a light in dark places fairly, bravely, and without fear or favour.

“Instead of defending its journalists, ABC management chose to appease powerful voices, undermining editorial independence and wasting more than $1 million of taxpayer money so far in the process.”

“… This is a betrayal of the ABC’s mandate, and of the people who work every day to uphold it.”

Given the polarising nature of the case, Michael Byrnes, a partner in employment law at Swaab, claimed that some of the reporting on the intricacies of the legal detail were missed, which can dismiss how strenuous Lattouf’s pathway to success in this matter was.

“The case is widely being reported as an unfair dismissal case. That is not right – it was not and could not have been an unfair dismissal case – it is (primarily) an unlawful termination case. The difference is more than semantic,” Byrnes said.

“Unfair dismissal is a broad cause of action [that] requires determination of a range of matters, including whether was a valid reason for termination, procedural fairness was afforded to the employee and the termination was harsh, unjust or unreasonable.

“By contrast, unlawful termination is a narrow cause of action, in which success for an applicant depends on whether the employer’s substantial and operative reasons for termination of employment included a prohibited reason (in this case, the holding of a political opinion).

“This made Ms Lattouf’s path to success in this matter more difficult and the result more noteworthy than if it had been a standard unfair dismissal case.”

On top of that, Byrnes’ initial reflections turned towards employers, who, much like the ABC, should look upon the case as a bit of a wake-up call.

“There will likely be some commentary suggesting that employers cannot take action against employees for posting personal opinions on social media,” said Byrnes.

“That would be reading far too much into the judgment in relation to that specific issue, which mainly draws on different principles. Employers will need to be careful, however, to ensure that if it terminates employment due to social media activity, it is not for a prohibited reason (such as holding a political opinion).”

Greg Barns SC, spokesperson for the Australian Lawyers Alliance, claimed that the case was yet another example of the pitfalls that arise when there is a “lack of constitutional right to freedom of speech in Australia”.

“This litigation, however, draws attention to the current lack of a constitutional right to freedom of speech in Australia,” said Barns.

“A federal human rights act would ensure that those who wield power, such as employers, are subject to a code of conduct that would prevent them from exercising this power in a way that infringes upon people’s rights.

“There are many examples of significant litigation where breaches of fundamental rights were at the heart of the case. In so many of these cases, a federal human rights act would have prevented litigation or ensured a better result.”

Previously speaking to HR Leader about the intertwinement of work and politics, Lattouf herself touched on the importance of a constitutional right to free speech.

“Discriminating against or dismissing an employee because of their political opinion is unlawful, but this doesn’t mean it doesn’t happen, particularly when corporations are increasingly bullish in how they crack down on employees,” said Lattouf.

“While there is no constitutional right to free speech in Australia, it remains an important and assumed right for many. It’s a powerful tool that can empower individuals and drive important conversations.”

“At the same time, it’s crucial for employers to create a safe and inclusive work environment. If the majority of staff departures are from marginalised groups or if those being punished for their political opinions also largely hail from marginalised groups, it’s a clear sign that the workplace and management style needs serious reflection.”

“This would suggest that the workplace is far less safe and inclusive than one employee’s Facebook post.”