Just like the Israel Folau case, the proceedings commenced by journalist, host and author Antoinette Lattouf against the Australian Broadcasting Corporation (ABC) have garnered significant media attention and again shone the spotlight on the issues arising from the use of social media by employees.

The applications and the responses filed by the parties are not in the public domain, however, some details of their respective positions can be gleaned from the directions issued by Deputy President Boyce of the Fair Work Commission (FWC) on 23 January 2024 (Directions).

In respect of the proceedings to date it is evident from the Directions that:

(a) On 22 December 2023, Ms Lattouf filed an unlawful termination dispute application with the FWC pursuant to section 773 of the Fair Work Act 2009 (Act) on the ground of alleged unlawful termination of employment for reasons of political opinion.

(b) The application was amended on 10 January 2024 to include two further alleged unlawful grounds, namely race and national extraction or social origin.

(c) On 15 January 2024, the ABC filed a response to the application in which it denied it terminated Ms Lattouf's employment unlawfully.

(d) On 18 January 2024, a private conciliation conference (in effect, a mediation) was conducted between the parties by the FWC. The proceedings did not settle at the conciliation conference.

(e) On 22 January 2024, the ABC filed an amended response raising two objections to the Application. One of those is a technical objection that certain aspects of the claim (specifically allegations as to conduct based upon race and/or national extraction or social origin), should have been brought under a different provision of the Act (not section 773). The second objection, which will be canvassed further below, is that there was no termination of employment by the ABC, with the employment ending at the end of the five-day engagement with Ms Lattouf paid for the full period of the engagement.

The importance of termination

In its amended response the ABC appears to deny that there was a termination of employment. This issue is critical - unless there is a termination of employment at the initiative of the employer the provision of the Act pursuant to which the application is brought (section 773) is not engaged. It may be fatal to the claim.

The ABC employed Ms Lattouf as a casual employee, with the term of her employment being five days (as a holiday replacement for the usual ABC Radio Sydney morning presenter). What is incontrovertible is that on the third day of the five-day engagement the ABC removed Ms Lattouf as the replacement host. It has been reported, however, that Ms Lattouf was paid for all five days.

Looking at an employment situation of this kind generally there are a few possible scenarios that could have arisen. They are instructive beyond this case as employers and employees alike can often be confused as to the precise time employment is terminated.

One scenario is that on the third day the employment was terminated with a payment made for the balance of the five days. On that scenario employment is terminated at the initiative of the employer. If this is what occurred in relation to Ms Lattouf then the termination of the employment would be at the initiative of the ABC and the relevant provision (section 773), which is predicated upon termination, is enlivened.

An alternative scenario is where an employee is told on the third day that they are not required to perform any further work. They are relieved of their duties. The employment, however, is not terminated at that point. Instead, the employment remains on foot and the employee is paid for the five-day engagement, even though the employee is not required to perform work for the balance of the five days. The employment then ends, as was always contemplated and agreed at the outset, at the end of the five-day engagement. The cessation of employment in that scenario is by the passing of time (specifically, five days) rather than at the initiative of the employer. In that event the relevant provision (section 773) is not enlivened. Presumably the ABC contends this (or something similar) is what occurred with Ms Lattouf and this forms the basis of one of its jurisdictional objections. It is worth noting that, generally speaking, employers do not necessarily have an obligation to provide work or require an employee to perform work. An employer can relieve an employee from the obligation to perform work with the employment relationship remaining on foot, provided the employer continues to pay the employee.

The role of the FWC

In matters of this kind, the role of the FWC is usually confined to conciliation. As noted in the Directions this has already occurred. The conciliation was unsuccessful. The FWC also needs to determine any jurisdictional objection. As noted above, the ABC has made such jurisdictional objections and (as part of the Directions) the hearing in relation to those objections has been listed for 8 March 2024 (before Deputy President Boyce).

In the Directions, the Deputy President addresses the role of the FWC in the proceedings:

"The hearing and determination of the ABC's objections will not concern the substantive merits of the Amended Application (i.e. whether or not the Applicant was terminated for an unlawful reason). Rather, the hearing and determination of the ABC's objections only concerns whether the Amended Application can proceed further, in whole or in part. If the ABC is successful in making out either of its objections, that may bring an end to the proceedings. If the ABC is not successful, the Commission will issue a Certificate (under s.776(3) of the Act), which enables the Applicant to proceed with her claims before the Federal Court of Australia, and to have the ultimate question of whether or not the Applicant was terminated for an unlawful reason determined by a judge."

If the ABC is unsuccessful in its jurisdictional objections and the case proceeds, the substantive merits (i.e. whether there was an unlawful termination) will be determined by a Federal court (either the Federal Circuit and Family Court or the Federal Court), not the FWC.

Is this a good "test case"?

While this case is undoubtedly important for the parties, particularly Ms Lattouf, is it a good case to test and explore the limits of free speech by employees generally? In my view, and with the greatest of respect to all involved, the answer is no. This was also my view of the Folau case. To be clear, this is not a reflection of the perceived merits of the case but rather the context in which the dispute arises.

In this regard, I largely repeat and affirm observations I have made previously in the context of the Folau case. Concerns about employers unjustifiably encroaching on the private lives of employees have united people across the political and philosophical divide. Various legal commentators (including myself) have written about the risks of overreach from employers, including contractual terms and/or codes of conduct, that purport to regulate out of hours employee conduct (including social media posts and other forms of expression) that has no or minimal nexus with the legitimate interests of the employer. The employer's prerogative to govern out of hours employee conduct has limits (as notably set out in the seminal decision of Rose v Telstra Corporation Limited (1998) AIRC 1592).

Test cases are ideally the best example of a group to whom the ultimate finding will pertain, in this context being employees. As with Israel Folau, Antoinette Lattouf was an atypical employee. As a broadcaster on the ABC, she was (and of course remains) a public figure. It may be difficult for her to argue that her post was done in a "private" capacity, or that the post could have nothing to do with the ABC because it was done "off-duty". Further, as a broadcaster on the ABC, she was subject to strict standards in relation to impartiality and personal opinions. Unlike commercial talk radio, where presenters are expected to hold and express personal views (often colourfully), presenters on the ABC are expected to maintain neutrality, on-air and, to a great extent, off-air as well.

In essence, both Mr Folau and Ms Lattouf are different to the "average" or "normal" employee, who would be in a stronger position to submit that their personal conduct has no reasonably arguable connection with their employment. The ideal test case would be one that involves an employee with no public profile or broad interaction with the general public, who posts something controversial and has their employment terminated as a result. Such an employee can better establish a clear demarcation between their private social media account and employment. The employer might struggle to convince a tribunal or court that a post on a personal social media account had sufficient connection with employment to warrant termination.

The nature of the case

This is not an unfair dismissal case. As presently formulated, the question of whether any termination of employment was fair, defensible or valid does not directly arise. The question is whether any termination of employment was for a prohibited reason under the Act (specifically, as presently alleged in the amended application, political opinion, race, or national extraction or social origin). It is theoretically conceivable that a court could find Ms Lattouf complied with all directions and policies applicable to her, yet if the decision maker genuinely held the belief she had not, and terminated her employment solely on that basis (and not a prohibited ground), then the ABC could still successfully defend the claim. The path to victory for employees in cases of this kind is a narrow one.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.