Casual radio presenter terminated when taken off-air

This article considers the circumstances under which a genuine casual employee is considered ‘terminated’ for the purposes of the Fair Work Act 2009, with reference to Lattouf v Australian Broadcasting Corporation (2024) FWC 1441.

The Fair Work Commission (Commission) concluded that a casual radio presenter, removed from air on the third day of a scheduled five-day stint, was dismissed.  This decision enables the presenter to pursue a claim of unlawful termination of employment because of her ‘political opinion’ and ‘race’ and/or ‘national extraction’.  

Key events

  • Antoinette Lattouf (Applicant) is a freelance journalist, commentator and presenter, who was employed periodically by the ABC on a casual basis subject to a casual employment contract (Contract).
  • In December 2023, the Applicant agreed to fill in on the ABC’s ‘Sydney Mornings’ radio program for five consecutive weekday shifts (Appointment).
  • Following her first shift, Elizabeth Green, ABC Content Director, spoke with the Applicant regarding numerous complaints from ‘pro-Israel lobbyists’ who were concerned that the Applicant lacked impartiality and should not be on the air.  Ms Green advised the Applicant to keep a ‘low profile’ on social media.
  • After her second shift, the Applicant shared a post on her Instagram account about the Israel-Gaza conflict from a non-government organisation called Human Rights Watch (Post).
  • The Post led to discussions among senior ABC employees. Christopher Oliver-Taylor, Chief Content Creator, concluded that the Applicant had breached a direction given to her by Ms Green not to make social media posts for the duration of the appointment.  
  • At the conclusion of her third shift, the Applicant was informed that the ABC considered the Post to be contrary to the instruction provided by Ms Green, and was in breach of the ABC’s policies.  The Applicant was not required to work the two remaining shifts, and was asked to leave the premises. Notwithstanding, the Employee was paid for the entire Appointment, including the two shifts not worked.
  • Later on the same day, the Applicant wrote to the ABC to state that she felt she had been unfairly dismissed.  She did not receive a response.

Legal proceedings

  • The Applicant initiated unfair termination proceedings under section 773 of the Fair Work Act (Act), alleging that ABC terminated her employment in breach of section 772(1), which relevantly prohibits termination based on political opinion, race or national extraction.  
  • The ABC raised two jurisdictional objections:
  • the Applicant’s employment was not terminated.  It simply ended due to the effluxion of time.  That is, at the conclusion of the agreed five-day casual appointment; and
  • the Applicant was not permitted to make claims about her ‘race’ and/or ‘national extraction’ in the context of a claim under s 773 of the Act, as she was entitled to make (and should have made) a general protections application in relation to that conduct.  

Decision in favour of the Applicant

First jurisdictional objection

  • The Commission determined that ‘terminated’ (which is not defined in the Act), should be defined by reference to the meaning ‘dismissed’ under s 12 and s 386(1)(a) and applicable case law and authorities.  
  • The Commission found that the employment relationship was terminated at the ABC’s initiative, largely because the ABC had directed the Applicant not to work the final two shifts and had failed to respond to her email and confirm that she remained employed. Contrary to the ABC’s argument, the Commission found that the payment to the Applicant in respect of the final two shifts was an ex-gratia payment (and not wages). 

Second jurisdictional objection

  • The Commission found that the Applicant was not precluded from making an application under section 773 of the Act, because she had used the formulation ‘and/or’ in her pleadings.

Take-aways for employers  

  • Casual employees have rights under the Act. Employers should exercise caution when terminating the employment of casuals, and ensure procedural fairness is applied based on the circumstances.
  • When assessing whether an employee has been dismissed, the Commission will focus on who initiated the termination of employment.
  • In larger organisations, messages passed down through managers can change or lose clarity. Employers should ensure clear and consistent communication of directives.
  • Breach of a reasonable and lawful management direction can justify dismissal, provided the directive and consequences for breach are clearly communicated.
  • If your business has a Social Media Policy, you should evaluate this to ensure any restrictions on political expression are legally justified.

The information contained in this update is intended as a guide only. You should seek professional advice before applying any of the information to particular circumstances. Whilst reasonable care has been taken in the preparation of this update, EmploySafe Legal does not accept liability for any errors it may contain.

Kate Simpson
Managing Director – Employment & Safety Lawyer
+61 420 972 497

kate.simpson@employsafelegal.com.au

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