Lattouf v Australian Broadcasting Corporation (Penalty)

This judgment is the penalty decision, not the first ruling in the dispute. That point needs to be clear at the outset because the Court had already decided the liability questions in an earlier judgment, Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669.

In the earlier decision, the Court found substantially in Ms Lattouf’s favour. It declared that the ABC contravened s 772(1) of the Fair Work Act 2009 (Cth) by terminating her employment for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza. It also declared that the ABC contravened s 50 of the Fair Work Act by breaching several clauses of the ABC Enterprise Agreement 2022-2025. The Court had already ordered the ABC to pay compensation of $70,000.

This later judgment asks a different set of questions. It deals with pecuniary penalties, the number of contraventions, the course of conduct principle, seriousness, deterrence, the involvement of senior executives, previous contraventions, the size of the organisation and the consequences of the conduct. So if you are reading this as a business owner, do not treat it as a standalone ruling on all facts and liability issues. It is best understood as the second stage of the case.

The Court placed the dispute in the context of the Israel/Gaza war, describing it as one of the most covered, contested and controversial news stories in the world. It said a state of hostility developed between supporters of each side, including campaigns of vilification, doxxing and cancelling on social media and elsewhere.

Ms Lattouf had made numerous social media posts condemning the mass killing of Palestinian civilians by Israeli forces in Gaza. She was then employed by the ABC to present the Sydney Mornings radio program for five days in December 2023. Soon after her first program, the ABC began receiving complaints from members of the public asserting that she had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any ABC program. The Court said those complaints turned out to be an orchestrated campaign by pro-Israel lobbyists to have her taken off air.

Senior ABC management was greatly concerned, but initially decided she would not be taken off air and would complete her engagement. The turning point came on Wednesday 20 December 2023, when ABC managers became aware that she had reposted a Human Rights Watch video report about starvation as a weapon of war in Gaza, adding the caption, “HRW reporting starvation as a tool of war”. Within an hour, the ABC’s Chief Content Officer, Mr Oliver-Taylor, reversed the earlier decision.

Ms Lattouf was informed that she had shared a post that could be considered controversial and had breached ABC policies. She was told she would not be required for her remaining two shifts and should leave the premises. The policies were not identified to her, and she was not given an opportunity to defend herself against the allegations. She then commenced proceedings alleging contraventions of ss 50 and 772(1)(f) of the Fair Work Act.

The penalty judgment repeats important findings from the earlier liability decision. The Court rejected Ms Lattouf’s claims concerning race and national extraction, but upheld her claim that her employment was terminated for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza.

The Court also rejected Mr Oliver-Taylor’s evidence about his reasons for taking her off air. It did not accept that he believed she had been given a direction not to post anything on social media about the Israel/Gaza war. Instead, the Court found that he understood she had merely been given advice or been requested not to post anything about the war. The Court also did not accept that he had a formed view that she had breached the ABC’s Personal Use of Social Media Guidelines. Rather, it found he had no more than a suspicion that she might potentially have breached some ABC guideline or policy.

The Court then identified several actual reasons for the decision to take her off air. These included that Mr Oliver-Taylor thought it was misconduct for her to post about the war after being advised or requested not to do so, that he believed she had expressed a biased view and suspected she may have breached some policy or guideline, that he sought to mitigate an anticipated deluge of complaints and criticism and to appease pro-Israel lobbyists, and that he thought taking her off air might mitigate damage to the ABC’s reputation for impartiality. The Court accepted that protection of the ABC’s reputation could be regarded as a substantial or operative reason, but not the only one.

Critically, the Court found that Ms Lattouf’s expression of opposition to the Israeli military campaign in Gaza in the Human Rights Watch post was a substantial and operative reason for the decision. It also found that Mr Oliver-Taylor attributed to her the holding of a political opinion opposing the Israeli military campaign in Gaza and that this made her unsuitable to work as a presenter at the ABC. Those findings underpinned the earlier declaration that the ABC contravened s 772(1).

The Court also held that the ABC contravened s 50 by breaching enterprise agreement clauses requiring certain misconduct process steps. Those included written advice of the nature of the alleged misconduct, advice about representation, written advice of the process to be undertaken, an opportunity to respond, advice where alleged misconduct is viewed as likely serious misconduct, and the disciplinary action clause dealing with dismissal.

Once liability had been established, the main issue became how many separate contraventions there were and what penalties were appropriate. That mattered because the number of contraventions affects the number of available penalties and the total penalty exposure.

The parties agreed that the ABC’s contraventions of s 772(1) and clause 55.4.1(f) of the enterprise agreement were in relation to particular conduct and that, because of the civil double jeopardy provision in s 556 of the Fair Work Act, only a single penalty could be imposed for those contraventions.

The dispute centred on clause 55.2 of the enterprise agreement. Ms Lattouf argued that the ABC’s breach of each of paragraphs (a), (b), (c) and (f) of clause 55.2.1, and also clause 55.2.2, was a separate contravention of s 50. The ABC argued that, properly construed, clause 55.2 was a single term and therefore there had been only one contravention of s 50.

The Court approached that issue by asking what counts as “a term” of an enterprise agreement for the purposes of s 50. It said a contravention of s 50 requires a contravention of an obligation under an enterprise agreement that is binding on a party. It also said the question depends not merely on drafting form, such as numbering or lettering, but on the substance of the obligations imposed. The Court referred to authority that the ascertainment of what is a term depends on matters of substance, namely the different obligations that can be spelt out, rather than the way the provisions are labelled.

That led to a practical, business-relevant distinction. Paragraphs (a), (b) and (c) of clause 55.2.1 all dealt with advice to be given to the employee when misconduct is alleged. The Court considered that these matters would ordinarily be provided together, effectively through a single piece of correspondence. In that context, treating each paragraph as a separate term was artificial. By contrast, paragraph (f), which required the ABC to actually give the employee an opportunity to respond and explain their actions or inactions, was a different kind of obligation. Clause 55.2.2, requiring the ABC to advise the employee if it formed the view that the alleged misconduct was likely to constitute serious misconduct, was also a separate obligation.

The Court imposed four pecuniary penalties on the ABC. First, for the contravention of ss 772(1) and 50 through the breach of paragraph (f) of clause 55.4.1 of the enterprise agreement, it imposed $75,000. Secondly, for the contravention of s 50 through the breach of paragraphs (a), (b) and (c) of clause 55.2.1, it imposed $12,500. Thirdly, for the contravention of s 50 through the breach of paragraph (f) of clause 55.2.1, it imposed $12,500. Fourthly, for the contravention of s 50 through the breach of clause 55.2.2, it imposed $50,000. The ABC was ordered to pay the penalties to Ms Lattouf within 28 days.

The judgment also records the broader penalty framework. The Court noted that the purpose of the civil penalty regime under the Fair Work Act is primarily, if not solely, deterrence. An appropriate penalty should not be greater than necessary to achieve deterrence, but must still be sufficient to protect the public interest in compliance. The Court referred to the course of conduct principle and to the need for a reasonable relationship between the statutory maximum and the final penalty imposed.

The extract available here does not include the full later reasoning under all headings, but it does show that the Court treated the conduct as serious and considered matters such as senior executive involvement, previous contraventions, the size of the organisation and the consequences of the contraventions when fixing penalty.

The first lesson is procedural. If misconduct is alleged, identify the exact instrument that governs the process. In this case, the enterprise agreement mattered in detail. The Court treated failures to provide required advice, to give an opportunity to respond, and to advise that conduct was viewed as likely serious misconduct as legally significant obligations. A business that skips those steps because it feels pressure to act quickly may create separate contraventions, not just one general fairness problem.

The second lesson is about reasons. The Court accepted that reputational protection could be a substantial or operative reason for the ABC’s decision, but it was not the only one. The earlier liability findings show that if a prohibited reason forms part of the decision to terminate, that can breach the Fair Work Act even where the employer also points to controversy, complaints or policy concerns. Internal texts, file notes and the evidence of decision-makers can become central in proving what the real reasons were.

The third lesson is to distinguish between a direction, a request and a suspicion of breach. The Court found that this was not a case where Ms Lattouf had failed to comply with a lawful and reasonable direction, and that the decision-maker had no more than a suspicion that she may have breached some ABC guideline or policy. For employers, that is a reminder not to overstate the certainty of a policy breach when the facts are still being assessed.

The fourth lesson is that drafting structure does not always map neatly onto penalty exposure. If your enterprise agreement, contract or policy contains several subparagraphs, a court may ask whether they are really one combined obligation or several distinct duties. That can affect both litigation strategy and compliance design. Businesses should therefore review disciplinary procedures as practical workflows, not just legal text.

Finally, this case is a reminder that senior decision-makers need discipline under pressure. The Court’s headings show it considered the involvement of senior executives and the size of the organisation. Larger or well-resourced organisations should not assume that urgency or public controversy will excuse a failure to follow agreed process.

One of the most useful features of the case is the Court’s close attention to what the decision-maker actually knew and recorded. The earlier findings quoted in the penalty judgment refer to an emailed file note, text messages, the distinction between a request and a direction, and whether the decision-maker truly held a view that a policy had been breached or only suspected that one might have been. That is a practical warning for employers.

When a disciplinary issue arises, the documents created in the moment often matter more than later explanations. If a manager writes that an employee has breached trust, impartiality or policy, but cannot identify the policy or show that the employee was given the required process, those records may support the employee’s case rather than the employer’s. Likewise, if internal communications show concern about appeasing complainants or getting ahead of a negative story, that may affect how a court understands the real reasons for the decision.

Businesses should therefore train managers to document carefully, avoid conclusory language before facts are established, and ensure that any file note or message aligns with the actual process being followed. A rushed internal record can become a key piece of evidence later.

The penalty judgment was delivered on 24 September 2025 by Rangiah J in the Federal Court of Australia. It followed the earlier liability judgment delivered on 25 June 2025. The orders required the ABC to pay the pecuniary penalties within 28 days.

Because this is the penalty phase, anyone wanting the full picture should read it together with the earlier liability decision. This page focuses on the public business-facing implications of the penalty ruling and the findings repeated within it.