Lat­touf v ABC: The Cur­rent State of Play

Back­ground

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:

1. 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.
2. The appli­ca­tion was amend­ed on 10 Jan­u­ary 2024 to include two fur­ther alleged unlaw­ful grounds, name­ly race and nation­al extrac­tion or social origin.
3. On 15 Jan­u­ary 2024, the ABC filed a response to the appli­ca­tion in which it denied it ter­mi­nat­ed Ms Lat­touf’s employ­ment unlawfully.
4. 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.
5. 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 has 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.