Federal Court of Australia

Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared. The summary is intended to assist in understanding the outcome of the proceeding, and is not a complete statement of the conclusions reached by the Full Court. The only authoritative statement of the Full Court’s reasons is that contained in the published reasons for judgment which will be available on the Federal Court judgments website. The summary is also available there.

1 On 7 October 2023, the Palestinian militant group, Hamas, launched a major attack on Israel, killing about 1,200 people and taking more than 250 hostages. Israel responded by bombing and launching an invasion of the Gaza Strip, causing massive destruction and killing many thousands of people.

2 The applicant, Antoinette Lattouf, made numerous social media posts expressing her views about the Israel/Gaza war. The major theme of her posts was condemnation of the mass killing of Palestinian civilians by Israeli forces, although some of her posts also condemned the killing of Israeli civilians by Hamas.

3 The Israel/Gaza war quickly became the most covered, contested and controversial news story in the world, with each side claiming that coverage by mainstream media was inaccurate and biased. A state of hostility developed between supporters of each side. In Australia, heated rallies and protests were held and widespread campaigns of vilification, including doxxing and cancelling, were conducted.

4 It was in the midst of this maelstrom that Ms Lattouf came to be employed by the respondent, the Australian Broadcasting Corporation (the ABC), to present the Sydney Mornings radio program for five days from Monday, 18 December to Friday, 22 December 2023.

5 Soon after Ms Lattouf presented her first program, the ABC began to receive complaints from members of the public. The complaints asserted she had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC. It became clear that the complaints were an orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air.

6 The complaints caused great consternation amongst the senior management of the ABC. Ms Lattouf was given what has been characterised by the ABC as a “direction” not to post anything on social media that would suggest she was not impartial in relation to the Israel/Gaza war. However, I find Ms Lattouf was merely provided with advice that it would be best not to post anything controversial about the war.

7 The campaign to have the ABC remove Ms Lattouf continued. At the same time, pro-Palestinian activists organised a protest outside the ABC’s Melbourne offices, presumably because they too were asserting that the ABC was biased.

8 On Wednesday, 20 December 2023, ABC managers became aware that on the previous day, 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” (the HRW Post). The HRW report had already been the subject of a story on ABC News. The consternation of senior managers of the ABC turned into what can be described as a state of panic.

9 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 told 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.

10 Section 772(1)(f) of the Fair Work Act 2009 (Cth) (the FWA) provides an employer must not terminate an employee’s employment for reasons which include political opinion, race or national extraction. Ms Lattouf claims the ABC terminated her employment for reasons that included her political opinions, race and national extraction.

11 Section 50 of the FWA provides a person must not contravene a term of an enterprise agreement. Ms Lattouf also claims the ABC failed to comply with its obligations under the ABC Enterprise Agreement 2022–2025 (the Enterprise Agreement), including by failing to give her an opportunity to respond to allegations of misconduct made against her.

12 Ms Lattouf asks the Court to make declaratory orders, award her compensation for non-economic loss and impose pecuniary penalties on the ABC.

13 I will consider Ms Lattouf’s allegation of contravention of s 772(1)(f) of the FWA before turning to consider her allegations concerning s 50 of the FWA.

Section 772(1) of the FWA

14 I accept that Ms Lattouf held political opinions including:

(a) opposing the Israeli military campaign in Gaza;

(b) supporting Palestinians’ human rights;

(c) questioning the authenticity of footage of demonstrators chanting anti-Semitic chants at the Sydney Opera House; and

(d) that media organisations should report about the conflict between Israel and Palestinians accurately and impartially.

15 In my opinion, the protection for an employee under s 772(1)(f) against termination of employment for “political opinion” encompasses not only holding a political opinion but also expressing a political opinion.

16 The issues which it is necessary to decide include:

Whether Ms Lattouf’s employment was terminated or, as the ABC alleges, it merely exercised its contractual right to “not require” her to work her final two shifts.

Whether there is evidence that the ABC was actuated by Ms Lattouf’s race or national extraction.

Who, on behalf of the ABC, made any decision to terminate Ms Lattouf’s employment, or materially contributed to that decision.

Whether the ABC has proved that the reasons for any termination did not include, as a substantial and operative reason, any of Ms Lattouf’s pleaded political opinions. This requires consideration of what the ABC’s actual reasons were.

Whether there was a termination of Ms Lattouf’s employment

17 The ABC denies there was any termination of Ms Lattouf’s employment. The ABC submits that there cannot be a termination of employment without repudiation of the employment contract and argues that it did not repudiate the contract.

18 The ABC instead characterises its conduct as exercising its contractual entitlement “during the period of an engagement” to advise Ms Lattouf of “changes” to “the work to be performed” and “the hours of work required”. It contends it was entitled to change her duties and hours to nil. The ABC also submits the contract of employment did not expressly or impliedly give rise to an obligation to provide Ms Lattouf with work to do.

19 It can be accepted that there is generally no obligation on an employer to provide work to perform under a contract of employment. However, there are exceptional categories of cases where an employer has a duty to provide a reasonable opportunity to work, including cases where the employee can be described as a “performer”.

20 The parties contemplated Ms Lattouf’s role would be to present information and content in a light, amusing and engaging way on Mornings. Ms Lattouf was, in other words, engaged to provide entertainment to the ABC’s listeners. The parties contemplated that exposure before the public would be important for Ms Lattouf’s career.

21 I find it was an implied term of the employment contract that the ABC would provide Ms Lattouf with a reasonable opportunity to present Mornings to the public.

22 On Wednesday, 20 December 2023, Ms Lattouf was informed that, “you will not be required to present the last two programs you have been booked to present”. That was euphemistic way of telling Ms Lattouf that she would not be permitted to present the program.  She was also told that she should tell the production team and then, “leave as soon as possible”.

23 I find that the ABC repudiated the contract of employment by informing Ms Lattouf that she would no longer be permitted to present Mornings. I also find that the ABC terminated the contract of employment. The ABC accordingly terminated Ms Lattouf’s employment.

Who made the decision to terminate Ms Lattouf’s employment?

24 On Tuesday, 19 December 2023, Mr Oliver-Taylor and Mr Anderson jointly made a decision that Ms Lattouf would remain on air until the end of the week. However, I find the decision to terminate Ms Lattouf’s employment on Wednesday, 20 December 2023 was made solely by Mr Oliver-Taylor.

25 Mr Anderson made a material contribution to the decision to terminate Ms Lattouf’s employment by informing Mr Oliver-Taylor of his view that Ms Lattouf had anti-Semitic opinions. Mr Anderson’s view was then adopted by Mr Oliver-Taylor.

Whether the ABC was actuated by Ms Lattouf’s race, national extraction or political opinion

26 The evidence does not support Ms Lattouf’s claims that Mr Anderson, Ms Buttrose, Mr Oliver-Taylor and Mr Latimer made or materially contributed to a decision to terminate her employment for reasons that included her race or national extraction.

27 I have no hesitation in accepting the evidence of those witnesses that their actions were not motivated to any extent by Ms Lattouf’s race or national extraction.

Whether the reasons for the termination did not include Ms Lattouf’s pleaded political opinions

28 The ABC pleads that the reasons for Mr Oliver-Taylor’s decision to take Ms Lattouf off air were:

His view that Ms Lattouf’s activity on her Instagram account on Tuesday, 19 December 2023 meant she may have breached the ABC’s policies or guidelines;

His view that Ms Lattouf had not complied with a direction given to her in relation to her use of social media; and

His loss of trust and confidence in Ms Lattouf to present live radio in accordance with directions issued to her.

29 The ABC asserts that Mr Oliver-Taylor did not take into account any political opinions held by Ms Lattouf.

30 On Wednesday, 20 December 2023, a Teams Meeting was held between Ms Green and Mr Latimer, Mr Ahern and Mr Melkman. Ms Green clearly informed the participants that she had not given any direction to Ms Lattouf about not posting on social media and had only given her advice. Ms Green then left the meeting and Mr Oliver-Taylor joined. It is inconceivable that the other managers would not have relayed the information given by Ms Green to Mr Oliver-Taylor.

31 Further, Mr Oliver-Taylor’s own file note shows that he understood a mere request had been made to Ms Lattouf not to post about the Israel/Gaza war.

32 I find that, contrary to his evidence, Mr Oliver-Taylor knew that Ms Lattouf had not been given any direction and had merely been given advice or requested not to post anything about the Israel/Gaza war on social media.

33 I do not accept Mr Oliver-Taylor’s evidence that a reason for his decision was his view that Ms Lattouf had breached the ABC’s Personal Use of Social Media Guidelines, given the inconsistency of his evidence on this point.

34 I do not accept that a reason for Mr Oliver-Taylor’s decision was loss of trust and confidence in Ms Lattouf to present live radio in accordance with directions issued to her.

35 Accordingly, I reject Mr Oliver-Taylor’s evidence that the reasons given by him for his decision to take Ms Lattouf off air were his actual reasons.

36 It remains necessary to determine whether I should accept Mr Oliver-Taylor’s evidence that he did not take into account any political opinions that Ms Lattouf may have had. More specifically, it is necessary to determine whether the ABC has proved that none of Ms Lattouf’s pleaded political opinions was a substantial and operative reason for Mr Oliver-Taylor’s decision. This involves an inquiry into Mr Oliver-Taylor’s actual reasons for his decision to take Ms Lattouf off air.

37 Although a decision had been made to keep Ms Lattouf on air for the remainder of the week, Mr Oliver-Taylor’s evidence was that was by Wednesday, 20 December 2023, “the pressure was now building”. His evidence was that “the position was becoming harder and harder” and he had concerns about “how long we could hold the position”.  The pressure came from the influx of complaints about the ABC’s employment of Ms Lattouf. The pressure came from Ms Buttrose’s and Mr Anderson’s trenchant criticism of Mr Oliver-Taylor and his team for the engagement of Ms Lattouf. The pressure also came from The Australian having indicated it was writing a story about Ms Lattouf’s employment with the ABC in the face of her social media posts.

38 The pressure felt by Mr Oliver-Taylor must have been amplified by discovering that on Tuesday, 19 December 2023, Ms Lattouf had made the HRW Post. This was different to her previous social media posts because it was made while she was an ABC employee.

39 It can be accepted Mr Oliver-Taylor was in a difficult position. It was one thing for the ABC to publish the HRW report as a news story: it was quite another for Ms Lattouf, having already made social media posts complained of as reflecting anti-Semitic and anti-Israel views, to repost the story. The HRW Post was bound to be controversial. Ms Lattouf’s making of the HRW Post was ill-advised and inconsiderate of her employer. Although Ms Green had said that if a post was fact based and from a verified source she was sure it would be fine, she had also reiterated that it would be best not to post anything that would be considered controversial. The ABC would have to brace itself for the inevitable criticism — whether fair or unfair — for permitting one of its presenters to make a controversial post and then allowing her to remain on air.

40 However, Mr Oliver-Taylor knew Ms Lattouf had not been given any direction not to post anything about the Israel/Gaza war and had no more than a suspicion that Ms Lattouf may have breached some editorial ABC policy or guideline.

41 Mr Oliver-Taylor decided that Ms Lattouf would not be permitted to present Mornings or perform any other duties on the following two days. I infer that Mr Oliver-Taylor made the decision for several reasons, each of which stemmed from Ms Lattouf having made the HRW Post.

42 First, Mr Oliver-Taylor thought it was misconduct for Ms Lattouf to make a post about the Israel/Gaza war when she had been advised or requested not to do so while she was an ABC employee. Mr Oliver-Taylor thought that by making the HRW Post, Ms Lattouf was expressing support for the view that Israel was adopting starvation tactics in Gaza.

43 Second, Mr Oliver-Taylor believed that Ms Lattouf had expressed a biased view about the Israel/Gaza war by making the HRW Post and suspected that she may thereby have engaged in misconduct by breaching some editorial ABC policy or guideline.

44 Third, Mr Oliver-Taylor understood that the ABC would face accusations of supporting and facilitating Ms Lattouf’s opinion that Israel was adopting starvation tactics in Gaza. In addition, The Australian intended to publish a story that was likely to be critical of the ABC’s employment of Ms Lattouf in light of her social media posts, and had asked who had appointed Ms Lattouf. I infer that Mr Oliver-Taylor sought to mitigate the anticipated deluge of complaints and criticism of the ABC and his team for its employment of Ms Lattouf following the HRW Post by taking her off air and “beat[ing] the story”. In that sense, 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.

45 Fourth, Mr Oliver-Taylor thought that taking Ms Lattouf off air might consequentially mitigate damage to the ABC’s reputation for impartiality. I accept that protection of the ABC’s reputation can be regarded as a substantial or operative reason for Mr Oliver-Taylor’s decision. However, it cannot be regarded as the only substantial or operative reason.

46 Each of Mr Oliver-Taylor’s first three reasons was interconnected with Ms Lattouf having made the HRW Post and his opinion that she was thereby expressing support for the view that Israel was adopting starvation tactics as part of its military campaign in Gaza.

47 I find that Ms Lattouf’s expression of opposition to the Israeli military campaign in Gaza in the HRW Post was a substantial and operative reason for the decision. What is less clear is whether a substantial and operative reason for the decision was that Ms Lattouf held that opinion.

48 An issue raised by the ABC is that Ms Lattouf has pleaded that her employment was terminated for reasons including she “held” the relevant political opinions and she has not pleaded her employment was terminated because she “expressed” political opinions.

49 However, there are indications that Mr Oliver-Taylor was not merely concerned by the fact Ms Lattouf had expressed controversial opinions in her HRW Post, but also the content of those opinions. For example, Mr Oliver-Taylor’s text message of the night of Monday, 18 December 2023 indicated his agreement with Mr Anderson’s opinion that Ms Lattouf held anti-Semitic views. Another email from Mr Oliver-Taylor demonstrates his concern over Ms Lattouf’s “position on the Gaza war”.

50 I am satisfied Mr Oliver-Taylor attributed to Ms Lattouf the holding of a political opinion opposing the Israeli military campaign in Gaza which, in his view, made her unsuitable to work as a presenter at the ABC.

51 As I have indicated, Mr Oliver-Taylor sought to appease members of the public who would attribute to Ms Lattouf the holding of anti-Israeli and anti-Semitic opinions by taking her off air. I find that Mr Oliver-Taylor’s reasons for his decision included his desire to mitigate further complaints about the ABC employing someone attributed with holding a political opinion opposing the Israeli military campaign in Gaza.

52 I am not satisfied the ABC has proved that a substantial and operative reason 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.

53 I have found that the ABC contravened s 772(1) of the FWA by terminating Ms Lattouf’s employment for reasons including that she held political opinions opposing the Israeli military campaign in Gaza.

Ms Lattouf’s allegation of contravention of s 50 of the FWA

54 There is no dispute about the construction of s 50 of the FWA. The issues upon which it is necessary to make findings include:

Whether an allegation of misconduct was made against Ms Lattouf by the ABC;

Whether the ABC was required to follow the disciplinary process provided by cl. 55.2.1;

Whether the ABC dismissed Ms Lattouf for serious misconduct; and

Whether Ms Lattouf had engaged in serious misconduct.

55 I find the ABC made allegations of “misconduct” against Ms Lattouf. The ABC alleged, in effect, that Ms Lattouf had engaged in improper conduct as an employee of the ABC, or improper conduct which brought, or was likely to bring, the ABC into disrepute.

56 The ABC “dismissed” Ms Lattouf within the meaning of cl 55.4.1 by refusing to allow her to provide further service when it was obliged to do so under an implied term of the employment contract. It also “dismissed” Ms Lattouf by terminating the contract of employment.

57 There is no requirement at common law to provide an employee with procedural fairness before taking disciplinary action. It is evident that cl 55.2 of the Enterprise Agreement aims to fill that gap by requiring the ABC to, inter alia, inform an employee of the content of an allegation of misconduct and provide them with a reasonable opportunity to defend themselves before a decision is made as to whether the allegation is substantiated. The ABC failed to follow these procedures when making an allegation of misconduct against Ms Lattouf.

58 I have held that the ABC contravened s 50 of the FWA by contravening cll 55.2.1, 55.2.2 and 55.4.1(f) of the Enterprise Agreement.

Relief

59 Ms Lattouf has sought the following relief:

(a) declarations that the ABC contravened ss 50 and 772(1)(f) of the FWA;

(b) an order for compensation for non-economic loss;

(c) an order that the ABC pay pecuniary penalties for its contraventions;

(d) an order that the ABC implement a compliance program to educate its managers on the requirements of cl 55 of the Enterprise Agreement.

60 I proceed on the basis that Ms Lattouf’s claim for a compliance program has been abandoned.

61 The claim for pecuniary penalties will be set down for hearing on another date.

62 I propose to make declarations that the ABC contravened ss 50 and 772(1) of the FWA.

63 Section 545(1) of the FWA provides for the Court to make an order awarding compensation for loss suffered as a result of a contravention, including non-economic loss.

64 The principal task is to ensure there is an appropriate causal connection between the contravention and the loss claimed. It is well recognised that the assessment of compensation for emotional distress is inherently imprecise.

65 Ms Lattouf deposes that immediately after she was terminated, she felt shock and humiliation. The termination of her employment, including the allegation that she had engaged in editorial wrongdoing and breached a management directive, was widely publicised. Ms Lattouf felt this affected her reputation and the perception of her integrity, causing her great distress. Ms Lattouf gave evidence of trouble sleeping, heightened anxiety, panic attacks and adverse impacts on her personal relationships. 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.

66 I consider that the appropriate award of compensation for Ms Lattouf’s non-economic loss is $70,000.

RANGIAH J

25 JUNE 2025

SYDNEY