The decision in the Antoinette Lattouf case has implications for employers dealing with employees' out-of-hours conduct
It may no longer be sufficient for employers to rely on breaches of policies governing employees’ social media usage and out-of-hours activity, or contractual or statutory duties to act in the best interests of the employer, to justify dismissal for conduct deemed by the employer to be potentially reputationally damaging.
The lawfulness and reasonableness of directions given to employees will be heavily scrutinised by courts, particularly when their breach is used to justify termination of employment. Factors such as the nature of the employer’s business, an employee’s seniority and the social context of the conduct may be relevant to whether such a direction is lawful and reasonable.
In addition to being lawful and reasonable, directions given to employees must be more forceful than a ‘suggestion’ or ‘advice’.
We are likely to see other protected attributes under Part 3-1 and section 772 of the Fair Work Act 2009 (Cth) (FW Act) being deployed as shields to disciplinary action.
Ms Lattouf was employed by the ABC as a presenter for its ‘Sydney Mornings’ radio program for a period of five days, on a casual basis. She was dismissed from her employment, with immediate effect, after the first three days of that engagement.
Relevantly, at the time, Ms Lattouf had a prominent social media presence, including on Instagram and X, featuring political commentary, about Israel and Palestine.
After the first program presented by Ms Lattouf, the ABC received complaints from members of the public which alleged that Ms Lattouf had expressed anti-Semitic views and called into question her impartiality. As a result of these complaints, Ms Lattouf was advised by Elizabeth Green, Content Director that it would be best to avoid publishing controversial content about the conflict.
The complaints related to Ms Lattouf’s social media presence generally and in particular, a video that she re-shared on 19 December 2023 (during her employment with the ABC), asserting that the Israeli government was ‘using starvation as a weapon of war’ (19 December Post).
Having been made aware of the 19 December Post, the ABC advised Ms Lattouf that she would not be required to present the final two programs for which she had been engaged, thereby terminating her employment. Ms Lattouf was advised that her conduct contravened ABC policies. The ABC also argued that the 19 December Post breached a direction issued to her to avoid posting controversial content during her employment.
Justice Rangiah found that no direction had been issued to Ms Lattouf, and the ABC ultimately accepted that Ms Lattouf had not contravened ABC’s Social Media Guidelines. Accordingly, Justice Rangiah found that the ABC had terminated Ms Lattouf’s employment in contravention the FW Act, namely for reasons including her political opinion. Ms Lattouf was awarded $70,000 in compensation for non-economic loss, with pecuniary penalties, and potentially costs, to be decided.
The vexed question of whether an employees’ employment can be terminated based on out-of-hours conduct is not new, with the Australian Industrial Relations Commission’s pivotal decision on this point dating back to 1998. However, proliferation of social media and an increasingly complex geopolitical context have added layers of complexity for employers who have a valuable public brand. The risk that an employee’s conduct will damage a business’ reputation is no longer remote, nor confined by the employee’s physical location.
Lattouf makes clear that employers have reached (and quite possibly surpassed) the limits of acceptable interference into employees’ personal lives for the purpose of brand management.
Critically, Justice Rangiah confirmed that the prohibition on terminating an employee’s employment for their political opinion ‘extends to the expression of political opinions and is not confined to the holding of political opinions’ (see paragraph [607]). Against the background of social media use, this finding will make it more challenging for employers to justify dismissal for the expression of political opinions, even where that expression may be unpopular or controversial.
Justice Rangiah acknowledged the peculiar circumstances faced by the ABC as a public broadcaster, for whom the perception of impartiality is paramount. However, these circumstances did not displace his Honour’s finding that Ms Lattouf’s dismissal was unlawful. From this position, it is apparent that a business’ requirement to present a particular political or impartial stance will not, of itself, permit an employer to substantially interfere with an employee’s conduct outside of their employment.
A key factual dispute in Lattouf was whether Ms Lattouf had been directed to refrain from posting controversial content about the Israel-Palestine conflict during her employment with the ABC. However, the key witness for the ABC on this point gave evidence that she ‘hadn’t directed [Ms Lattouf], only advised her to be careful about what she posted’ (see paragraph [284]), Justice Rangiah found that this ‘advice’ did not amount to a direction. Accordingly, this was ‘not a case where Ms Lattouf’s employment could be terminated for failing to comply with a lawful and reasonable direction’ (see paragraph [599]) As a result, whether it’s lawful to dismiss an employee because of their political opinion where tis expression is in violation of a direction, is a question for a different case.
The day before the decision in Lattouf, Deputy President Clancy of the Fair Work Commission delivered a decision which considered an employee’s dismissal for comments which were inherently political and at odds with his employer’s position, expressed in the course of his employment. While this decision has been overshadowed by Lattouf (for now), it indicates that the Fair Work Commission is grappling with similar issues and taking a similar approach.
In Shaun Turner v Darebin City Council [2025] FWC 1763, a former employee, Mr Turner, expressed views to the effect that Acknowledgments of Country are ‘at risk of overuse’ (see paragraph [61]). His employment was ultimately terminated for reasons including that the expression of these views breached his employer’s policies. The Fair Work Commission was not convinced that this constituted a valid reason for Mr Turner’s dismissal and disagreed with the proposition that ‘there will be a valid reason for dismissal if an employee fails to act in complete deference to their employer’s views and, moreover, does not adopt them’ (see paragraph [89]).
Section 772 of the FW Act, under which Ms Lattouf brought her claim, has only been considered by the Federal Court of Australia on one other occasion (see the decision of Fair Work Ombudsman v
Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242, albeit in a limited context). Lattouf focused primarily on the protected attribute of ‘political opinion’. Notwithstanding this relatively limited judicial consideration, we expect more of these issues to arise in practice.
Accordingly, it is an opportune time for businesses to revisit their social media policies and codes of conduct and approach to brand management where it extends to controlling employee actions out-of-hours. Much will turn on reasonableness.
Persephone Stuckey-Clarke is a partner in the employment and safety team in Dentons' Sydney office.