Federal Court Confirms Political Opinion Is a Protected Attribute in Dismissal: Lattouf v ABC [2025] FCA 669

In a significant decision handed down on 25 June 2025, the Federal Court in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669 found that the ABC had unlawfully terminated the employment of journalist Antoinette Lattouf in breach of section 772(1)(f) of the Fair Work Act 2009 (Cth). The Court also found a separate breach of the ABC's Enterprise Agreement for failing to provide procedural fairness before acting. This case serves as a timely reminder that employers must tread carefully when responding to contentious conduct by employees particularly where issues of political opinion or other protected attributes arise.

Background

Ms Lattouf, a freelance journalist of Lebanese background, was engaged to present the Mornings program on ABC Radio Sydney over five days in December 2023. During her engagement, she reposted a Human Rights Watch video on social media which was critical of Israel's military action in Gaza. The ABC received complaints and removed her from the remaining two shifts. No formal allegations were put to her, nor was she given an opportunity to respond. The ABC asserted it had not terminated her employment, arguing the engagement had simply concluded. However, the Court found there was a termination and that one of the operative and substantial reasons for the decision was Ms Lattouf's political opinion, contravening s 772(1)(f) of the Fair Work Act. The Court also held that the ABC had breached its own Enterprise Agreement by failing to follow required procedures before acting on alleged misconduct. This gave rise to a separate contravention of s 50 of the Fair Work Act.

Key Findings

• Political opinion includes expression: The Court confirmed that "political opinion" under the Act encompasses not just the holding of a belief, but also its expression particularly where it involves public discourse on matters of political and humanitarian concern.
• Enterprise Agreements matter: Even short-term or casual engagements are not immune from the obligations set out in enterprise agreements or employment contracts. If those agreements require a process before dismissal or discipline, it must be followed.
• Presumption in general protections claims: Where an employee alleges dismissal for a prohibited reason (e.g. political opinion, race), the law imposes a reverse onus on the employer to prove that was not the reason for termination. This is a critical distinction from unfair dismissal claims.

What Clients Need to Know

This decision highlights several legal and practical considerations for employers:

1. Understand the difference between unfair dismissal and general protections claims Many employers assume that only "long-term" employees are protected from dismissal, given the qualifying periods under unfair dismissal laws. However, general protections under the Fair Work Act apply from day one of employment. This includes protection from dismissal for reasons such as political opinion, race, sex, and other attributes listed in s 772(1)(f).
2. Casual does not mean 'risk-free' Engaging a worker casually or for a short stint does not remove an employer's obligations under the Fair Work Act or an enterprise agreement. In this case, even a five-day engagement triggered protections.
3. Procedural fairness is essential Where there is an allegation of misconduct, even if informal, employers should ensure the employee is notified of the allegation and given an opportunity to respond. Failing to do so may result in a breach of contract or enterprise agreement, exposing the business to financial and reputational risk.
4. Be cautious in high-profile or politically charged matters Employers should take particular care where employee conduct touches on sensitive or public matters. Decisions made in haste or based on external pressure may inadvertently contravene the law.
5. Seek legal advice before acting Before removing an employee, revoking shifts, or issuing directions that touch on protected areas (such as political or religious views), it is essential to obtain legal advice. The risks of getting it wrong are significant as are the potential penalties.

Conclusion

The Lattouf decision makes clear that political opinion, including its expression, is protected under Australian employment law. Employers must be aware that termination decisions, especially where the reasons are mixed or unclear, are likely to be closely scrutinised under the general protections framework. If your business is managing a workplace issue involving potential misconduct, reputational concerns, or political expression, the best approach is to pause and get legal advice early. A few considered steps at the outset can prevent costly consequences down the track.