Antoinette Lattouf recently won her case against the ABC for wrongful dismissal and was awarded $70,000 in non-economic damages. The case cost the ABC more than a million dollars. The question is: did the ABC make a mountain out of a molehill?
Giuseppe Carabetta, Associate Professor, Workplace & Business Law at UTS Ultimo took the time out of his busy schedule to look closely at the judgement. “The most significant aspect of the ruling from an employee perspective is that the Court took a fairly broad approach to ‘political opinion’, finding it extends to the expression – not just the holding of – political views. From an employer perspective though, Justice Rangiah very carefully made the point that this was not a decision where an employer had issued a firm direction – or had a more expansive policy – regarding social media postings by their employees.”
For those of you unfamiliar with the case, Ms Lattouf shared on her social media page an article from Human Rights Watch claiming Israel was using starvation as a weapon of war in Gaza. Ironically, the ABC had already posted the same article to its website.
Middle management initially decided to let the infraction slide. However, senior management apparently felt pressured to act and with guidance from in-house counsel, Elizabeth Green (Content Director) advised Ms Lattouf that she would “not be required” for her final two shifts.
Ms Lattouf acknowledged in Federal Court that she was encouraged to “keep a low profile on social media” but was never told explicitly not to post.
So, what may have been a simple misunderstanding by Ms Lattouf mushroomed into a global media storm costing over a million dollars in legal fees.
Prior to going to court, Ms Lattouf’s lawyer Josh Bornstein had made a settlement offer for $85,000 in damages, a written public apology from the ABC and Ms Lattouf’s reinstatement as a fill-in presenter. The ABC’s legal team took the position that they had no case to answer, having paid out her five-day contract in full and that her post on social media breached an ABC directive and the organisation’s posting guidelines.
Professor Carabetta warns that “this ruling will be a wake-up call for all media organisations and indeed have repercussions across all industries to review their policies and decision-making processes. Many organisations will now need to implement an expansive and complete policy regarding social media postings by employees.”
However, in a kind of Catch-22 situation, Professor Carabetta advises that “employers could then be challenged on whether it was a lawful and reasonable direction (based on the nature of the employer and employee’s position) and how such a direction would interact with the statutory protection against termination for political opinion.”
The ruling is clearly a win for freedom of speech, freedom of expression, employees, Ms Lattouf, and her lawyers.
