A Look at the Employment Dispute Between Antoinette Lattouf and the ABC

In December 2023, veteran journalist and presenter Antoinette Lattouf was axed from her role at ABC’s Sydney Mornings radio program. She was three days into a week long stint when told to not return the following day at the end of her last shift. The broadcaster says she was let go because she broke its directions on social media by re-sharing a Human Rights Watch (HRW) post about the Israel Gaza war.

 

 

Lattouf, who is of Lebanese descent, says she was fired based on political opinion and race. She launched a wrongful termination case with the Fair Work Commission with her legal team recently moving her case to the Federal Court, expanding it to include ABC breaching its own Enterprise Agreement (EA). Her new Statement of Claim states the ABC breached its EA five times, and “flagrantly ignored its legal obligations when it panicked and summarily dismissed” Lattouf.

For a good overview of the ABC’s rebuttal to Lattouf’s claims, read this article here.

Let’s break down all of the legal definitions mentioned in her case which has become a hot topic in the news.

 

Unlawful (or Wrongful) Termination

Unlawful termination is when an employer ends a person’s employment, and the reason is or includes a reason that is prohibited by the Fair Work Act.

Unlawful termination is one of the 3 areas of dismissal for which the Fair Work Act provides remedies. Unlawful termination applications are not available to many employees who have been dismissed.

Section 772 of the Fair Work Act 2009 sets out what equates to unlawful termination which you can access here.

Your employer must not terminate your employment for any of the following prohibited reasons:

  • you are temporarily away with illness or injury
  • you are (or are not) a member of a trade union
  • you participated in trade union activities outside business hours
  • you participated in trade union activities during business hours with your employer’s consent
  • you are seeking office as, acting or have acted as, a representative of employees
  • you filed a complaint or participated in legal proceedings against the employer
  • your race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
  • you take maternity or other parental leave
  • you are engaging in a voluntary emergency management activity and are away from work temporarily where the absence is reasonable in all the circumstances.

 

In Lattouf’s case, she has said she was fired for her political opinion and race.

 

Political Opinion and Race

Unlawful workplace discrimination under the general protections in the Fair Work Act (FW Act) occurs when an employer takes adverse action against an employee or prospective employee because of one or more of the following attributes:

  • race
  • colour
  • sex
  • sexual orientation
  • breastfeeding
  • gender identity
  • intersex status
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin
  • experiencing family and domestic violence.

 

An adverse action is unlawful if it is taken for a discriminatory reason. The FW Act describes a number of adverse actions.

Adverse action taken by an employer includes dismissing an employee on the grounds of race or political opinion. For the full list head here.

As per the Fair Work Commission’s website, political opinion includes membership of a political party; expressed political, socio-political, or moral attitudes; or civic commitment.

Workers are protected against adverse action in employment based on activities expressing their political views, but this protection does not extend to politically motivated acts of violence.

Race is a group of people who regard themselves as having a particular historical identity in terms of their colour, or their racial, national or ethnic origins.

As per the Fair Work Act section 351(1); An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race (and any of the attributes listed above).

For more information on discrimination in the workplace, head here.

Enterprise Agreement

Lattouf’s case has since expanded to include the claim the ABC breached its own employee enterprise agreement five times.

An enterprise agreement is between one or more national system employers and their employees, as specified in the agreement.

Enterprise agreements are negotiated by the parties through collective bargaining in good faith, primarily at the enterprise level. Under the Fair Work Act 2009, an enterprise can mean any kind of business, activity, project or undertaking.

Under the Fair Work Act 2009, the following new enterprise agreements can be made:

  • Single-enterprise agreement
  • Multi-enterprise agreement
  • Greenfields agreement

For more information on the different types of Enterprise Agreements, head to our blog article titled The Difference Between Registered Agreements, Enterprise Agreements, Awards And Employment Contracts.

What is a Statement of Claim?

When disputes are brought to court, the typical process is initiated by filing a Statement of Claim.

A Statement of Claim is a summary of the facts pertaining to your case. It begins the court process & includes details of the dispute. It’s filed with the court and served on the other party to the dispute.

It names the parties involved & the outcome you are asking for (eg. compensation)

It gives the other party an opportunity to respond. Typically this timeframe is 28 days from the date a Statement of Claim is filed.

A statement of claim also sets out the basis on which you are taking legal action by providing details of the dispute. These details are referred to as ‘pleadings and particulars’.

According to Maurice Blackburn Lawyers who released a statement last week, the new claim lodged with the Federal Court states the ABC breached the EA by:

  • Terminating her employment for misconduct when in fact, Ms Lattouf had not engaged in misconduct and had complied with guidance provided to her by management
  • Failing to advise Ms Lattouf in writing of the nature of the alleged misconduct
  • Failing to advise Ms Lattouf of the process to be undertaken by the ABC to determine whether the alleged misconduct was substantiated
  • Failing to give the Ms Lattouf an opportunity to respond and/or explain her actions or inactions and any mitigating factors she sought to have taken into consideration, before any decision was made about whether the misconduct had occurred or a determination as to the appropriate penalty had been made
  • Failing to advise Ms Lattouf that it considered the alleged misconduct was likely to constitute serious misconduct at the earliest opportunity, or at all

Lattouf is seeking reinstatement, compensation, pecuniary penalties against the ABC and orders that ABC management undergo training to ensure they comply with their EA obligations.

 

Employee Social Media Policy

The ABC have stated Lattouf was fired for breaking its directions on social media use by re-sharing a post from the Human Rights Watch on the Israel Gaza war. Lattouf was reportedly warned not to post controversial social media material as it breached their social media policy.

An employee social media policy sets out the guidelines for what your employees are permitted (and not permitted) to do or post on social media. Whether representing your business or sharing content that can be linked to your business, it’s important your employees understand what your expectations are for their social media use in the workplace, and outside of work hours.

A robust social media policy should cover many aspects in detail and its recommended to seek legal assistance for drafting one.

 

 

We’ll be keeping a close eye on the developments of Lattouf’s case against the ABC, make sure to follow our social media accounts for updates.

If you need assistance with any Employment Law matters, we can help. Contact our friendly team here.