How does the Lattouf judgment affect employees' freedom of speech?

The Age

2 days ago

Those hoping the Federal Court's findings in the Antoinette Lattouf case will go some way to answering a question surrounding the rights of workers to express their political opinion ‒ and the rights of employers to prevent them ‒ will probably be disappointed.
Lattouf's case was mounted on the basis that her employment contract was unlawfully terminated, in breach of section 772 of the Fair Work Act, due to her expression of her political opinion, or, alternatively, her race and political opinion. A secondary but related issue was that the ABC breached the staff enterprise agreement.
The ABC relied on the defence that it had terminated Lattouf's employment for reasons that did not include her political opinion, race or national extraction but because of her failure to follow a direction from her producer not to post anything about the Israel-Gaza war and because she had contravened the ABC's 'Personal use of social media - Guidelines'.
The court found in Lattouf's favour, noting that Lattouf had not been given a direction, but simply general guidance. It also found that the ABC was ultimately unable to identify any breaches of the social media guidelines or editorial guidelines or policies.
The decision is helpful in highlighting that employers are in general able to issue directions to employees about publicly expressing their views. The judgment refers to the established right of employers to issue 'lawful and reasonable' directions. It also suggests that these directions must be made clearly and, ideally, rely on established and accessible policies.
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Doing so enables employers to point to a specific employee breach if they wish to take disciplinary action. If they can't, then they leave themselves open, as did the ABC, to accusations of discrimination under provisions such as section 772.
The decision is helpful, but not groundbreaking, leaving one big question unanswered: the one we are still asking after a series of messy disputes ‒ think Folau, Khawaja, Gillham to name some recent examples. That is, how far can employers go in attempting to control employees' 'freedom of speech'?
In the Lattouf case, the Federal Court was not required to make any finding on this. It was required only to consider whether a direction was issued or a policy in place, not when the making of such directions or policies itself impinges on an individual's freedom of political expression. In thinking about this question, we must consider the delicate balance between employers' rights to protect their reputation and their obligation to maintain a safe workplace and employees' rights to self-expression. Where is the line that can't be crossed? And what are the institutional protections that might come into play in deciding where to draw that line?