Relevant Legislation
Under the Fair Work Act 2009 (Cth) (“FW Act”), employees enjoy general protections that may extend to the expression of political opinions, even when expressed outside the workplace. However, the scope of an employer’s ability to regulate an employee’s conduct on social media remains a nuanced and evolving issue.
Background
In our 2020 article, “Workplace Policies and Social Media”, we explored how social media can blur the lines between personal and professional life. Key points for employers include:
- Employers are entitled to expect employees to uphold the company's reputation and values even outside work.
- Social media policies must be clear, comprehensive and up to date.
- Disciplinary action for out-of-hours conduct must be based on a real connection to the workplace and be reasonable in the circumstances.
- Employers must balance the employee's rights to privacy and freedom of expression against the business's legitimate interests.
Recent Developments – Lattouf v ABC [2025] FCA 669
A recent Federal Court decision has renewed focus on the legal limitations employers face when acting on employees’ public commentary. In Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, Justice Darryl Rangiah found that the ABC contravened section 772(1)(f) of the FW Act by dismissing journalist Antoinette Lattouf for reasons that included her political opinion.
Section 772(1)(f) of the FW Act prohibits employers from terminating employment because of an employee’s political opinion. Importantly:
a. An employee must establish that their employment was in fact terminated to rely on this protection.
b. The onus is on the employee to prove that their political opinion was at least one of the reasons for the termination.
Justice Rangiah’s judgment clarified two significant aspects of this protection:
a. The political opinion need not be the sole or dominant reason for termination. Itis sufficient if it is one of the reasons, even if secondary.
b. The protection applies whether the employee merely holds the political opinion, expresses it, or both. This resolves an issue left undecided in Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2019] FCA 1409.
In Ms Lattouf’s case, the Court found that the ABC’s decision was at least partially motivated by her pro-Palestinian views expressed on social media.
Limits on Employer Control of Out-of-Work Conduct
The ABC argued that it could lawfully direct employees to avoid the Israel-Gaza topic when posting on public platforms, but this argument failed. The Court found that no such direction had been given to Ms Lattouf.
Even if such a direction had been given, it would have needed to be both lawful and reasonable, in order to be enforceable. The Court did not explore the ‘inherent requirements of the job’ exception under section 772(2) of the FW Act, as the ABC did not plead it. As such, the case leaves open the question of whether specific roles—particularly those with a public-facing aspect—may justify broader limits on political expression outside of work.
Conclusion
Employers must tread carefully when dealing with an employee’s personal use of social media, particularly when it touches on political discourse. Extra consideration should be given to whether the nature of the business justifies restrictions on such conduct. In that case, those expectations should be clearly communicated through lawful and reasonable policies.
Before taking action against an employee for comments made outside work, and also when attempting to give directions to employees, employers must consider not only the reputational impact but also the legal protections afforded to political expression.
How Sharrock Pitman Legal can assist?
For employers, this case, and likely many more to follow, underline the importance of having precise, targeted social media policies, and ensuring their consistent application.
If you would like advise navigating this legally sensitive area or if you would like assistance drafting social media or other policies for your workplace, please do not hesitate to contact our Employment Law team on 1300 205 506 or via email at sp@sharrockpitman.com.au.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Anthony Sangster Robles is a lawyer in our Employment Law and Commercial Law teams. Please contact Anthony directly on (03) 8561 3316 or email anthony@sharrockpitman.com.au.
