The ABC breached the Fair Work Act when it terminated casual broadcaster Antoinette Lattouf for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza, the federal court has found.
Senior ABC managers were in a “a state of panic” after an “orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air”, Justice Darryl Rangiah said in his judgment.
Rangiah upheld Lattouf’s claim heard in the federal court in February that she was unlawfully terminated in December 2023 when her on-air shifts were cut short three days into a five-day stint hosting Sydney Mornings.
He found the former ABC executive whose decision it was to remove her, Chris Oliver-Taylor, moved fast against Lattouf in an attempt to “mitigate the anticipated deluge of complaints” and to “beat” a story about pro-Israel complaints which was to be published in The Australian.
“Soon after Ms Lattouf presented her first program, the ABC began to receive complaints from members of the public. The complaints asserted she had expressed antisemitic views, lacked impartiality and was unsuitable to present any program for the ABC. It became clear that the complaints were an orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air …
“The consternation of senior managers of the ABC turned into what can be described as a state of panic,” Rangiah said in his judgment.
“In that sense, the decision was made to appease the pro-Israel lobbyists who would inevitably escalate their complaints about the ABC employing a presenter they perceived to have antisemitic and anti-Israel opinions in such a public position,” the judgment went on.
Ranghiah found the ABC had contravened section 772(1) of the Fair Work Act by terminating Lattouf’s employment “for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza”.
But the court found Lattouf was not terminated because of her race or national extraction.
“The evidence does not support Ms Lattouf’s claims that [David] Anderson, [Ita Buttrose, Mr Oliver-Taylor and [Ben] Latimer made or materially contributed to a decision to terminate her employment for reasons that included her race or national extraction,” Rangiah said in the summary of his judgment, which was livestreamed on the federal court’s YouTube channel.
The court ordered that the ABC pay Lattouf compensation of $70,000 for non-economic loss, and set down a date for a hearing on whether a pecuniary penalty ought to be imposed on the ABC.
Lattouf’s lawyer Josh Bornstein said outside court that he will ask the court for “a significant penalty in order to deter the ABC from repeating its illegal conduct in the future”.
The Fair Work Act says an employer may not take adverse action against an employee because of their political opinion or race. This was a partial win for Lattouf, as the court upheld her political opinion claim but not her race claim.
Before the judge read aloud a summary of the judgment, he handed out the full written reasons for his decision to the lawyers involved. There was a frantic flurry of papers being turned as the lawyers flipped through to find out if their side had won the day, even as Rangiah was still describing the context of the case.
After 10 seconds of reading, one of Lattouf’s barristers, Philip Boncardo, turned to Lattouf behind him and nodded – she had won. She turned incredulous to Bornstein, sitting next to her, who confirmed the news. Lattouf turned to her husband, sitting in the gallery behind her and mouthed: “We won.”
Lattouf hugged the lawyers sitting beside her, then bowed her head and cried, as Rangiah continued laying out the history of the events at the heart of the case.
Lattouf was removed from the ABC program after she shared an Instagram post from Human Rights Watch that said Israel had used starvation as a “weapon of war” in Gaza.
Her case argued that she was the subject of a pro-Israel lobbying campaign, the purpose of which was to remove her from air because of her social media support of Palestinian human rights.
However, the ABC said she was removed for not following a “direction” not to post about the war while working for the ABC.
Rangiah found Lattouf was “merely provided with advice that it would be best not to post anything controversial about the war” and was not given a direction not to post.
“I was punished for my political opinion,” Lattouf told reporters outside the federal court after the judgment was handed down.
“This unlawful decision goes right to the top of the ABC,” Bornstein told reporters.
The court accepted evidence from Lattouf’s psychiatrist that she had experienced an exacerbation of a depressive disorder as a result of the shock and humiliation of her termination.
“I accept the negative publicity associated with her termination added to her distress,” he said.
Lattouf had asked for compensation of between $100,000 and $150,000 but Rangiah said the appropriate award of compensation for non-economic loss is $70,000.
The ABC managing director, Hugh Marks, who was not leading the corporation at the time, apologised for the broadcaster’s handling of Lattouf’s employment and for the distress it caused her.
“We regret how the decision to remove Ms Lattouf from air was handled and the distress occasioned her,” he said. “We extend our sincere apologies to Ms Lattouf and wish her well in her future endeavours.”
“We also let down our staff and audiences, and this failure has caused understandable concern among the public and inside the organisation.”
