Federal Court explores employee protection for political views in Lattouf case

The Fair Work Act 2009 (Cth) contains provisions that protect an employee’s employment from being terminated for, or because of, their political opinion. In Lattouf v Australian Broadcasting Corporation (2025), the Federal Court accepted the applicant’s argument that this protection encompassed a circumstance where the employee held and/or expressed a political opinion.

Political opinion

To hold an opinion is to have or possess a particular view. The Court noted that in most cases, the employer will not know that an employee holds a political opinion unless they express it. However, the protection applies to an employee who holds an opinion without expressing it (e.g. where an employer assumes an employee holds and opinion that has been articulated by the employee’s spouse or associates) or expresses an opinion without holding it (e.g. an actor in a political advertisement).

To access the protection, the employer must terminate the employee’s employment for the prohibited reason.

Contract termination

The applicant employee in the Lattouf case argued that by preventing her from presenting a radio program, her employer repudiated her employment contract and thereby terminated it.

The employer claimed it was entitled to change the employee’s work under a term expressed in her employment contract.

The Court observed that, generally, the employer is not obliged to provide work to an employee to perform under a contract of employment. However, where an employer fails to provide work, the employer is still required to pay the employee the agreed wages. Exceptional categories where an employer has a duty to provide work include cases where the employee can be described as a performer or presenter.

The Court ruled the employer had an implied obligation to provide the employee with work, and this was not inconsistent with the employer’s express entitlement to change the number of hours she would be required to work in a day or over the duration of the engagement.

The Court decided that the employer had repudiated her employment contract by informing her that she would not be required or permitted to present the radio program for the remaining 2 days of her engagement and she could not attend the workplace. By doing this, the employer discharged her from service and the employment relationship was terminated.

The employer argued this did not terminate the employment contract because it did not give the employee notice of termination under the contract. The Court rejected this and found that a reasonable observer would understand the employer to have terminated the employee’s employment contract because it informed her that she had engaged in misconduct or required her to cease work immediately and leave the workplace without delay.

Prohibited reason

The employer argued that the only reason for terminating the employee’s employment was the fact that, by expressing controversial opinions, she did not meet the requirement to appear impartial to listeners. However, the Court concluded that the relevant decision-maker was also motivated by the content of those views, which in his opinion made her unsuitable to work as a presenter.

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