Can you be dismissed for your political opinions? The answer is not as simple as you may think.

Learnings from Australia – where did the ABC go wrong?

In December 2023, the Australian Broadcasting Corporation (ABC) employed journalist Antoinette Lattouf to host Sydney Mornings radio program for a five-day period. Soon after presenting her first program, the ABC received complaints from members of the public alleging that Ms Lattouf held anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC. The complaints were part of a campaign by pro-Israel lobbyists to have Ms Lattouf taken off air.

Senior management in a spin

Ms Lattouf’s manager advised her that it would be best not to post anything ‘controversial’ about the Israeli military campaign in Gaza. On the third day of her contract, ABC managers discovered she had reposted a Human Rights Watch video about the war on her personal Instagram account, adding the words “HRW reporting starvation as a tool of war”. Although that same report had already been the subject of a story on ABC News, Ms Lattouf’s post sent senior managers of the ABC into what the Federal Court termed “a state of panic”. Less than an hour later, Ms Lattouf was told that she had breached the ABC’s policies, not to return for her two remaining shifts, and to leave the premises immediately. The executives did not identify which policies she had allegedly breached nor give her an opportunity to defend herself against the allegations.

Holding a political opinion

Last month, the Australian Federal Court found that Ms Lattouf’s employment was unlawfully terminated and awarded her $70,000 in compensation. The Court held that her comments were “political opinions” because they related to government action, foreign affairs, and the media’s role in shaping public perception of the debate. Therefore, they were protected under Australia’s Fair Work Act, which prohibits an employer from terminating someone’s employment due to their political opinion. The ABC had argued the dismissal was due to a breach of its social media policies, not Ms Lattouf’s political views. But the Court found that she had not breached any formal policy or direction, and that her political opinions were a substantial reason for her termination. Her dismissal was, therefore, unjustified.

Case by case: how courts apply the rule

In Rumble v Partnership (t/as HWL Ebsworth Lawyers) [2020] FCAFC 37, the Federal Court of Australia found that an employee, Dr Rumble, was lawfully dismissed after he publicly criticised two of his employer’s clients in the media. While Dr Rumble claimed his termination was due to political opinion, and therefore protected under the Fair Work Act, the court disagreed. It held that the dismissal was based not on his views, but on his breach of a clear instruction and firm policy prohibiting public comment about clients.

By contrast, a key issue in Ms Lattouf’s case was the ABC’s inability to identify any editorial guidelines or policies that she had actually breached. Because there was no valid policy breach, and because her political views were a substantial reason for her dismissal, the court found she was protected under the Fair Work Act. Unlike Dr Rumble, she had not violated any enforceable workplace rule.

Would we see the same result in New Zealand?

New Zealand’s legislation also protects against discrimination due to political opinion, both in the Employment Relations Act 2000 and the Human Rights Act 1993.  

In the New Zealand context, we have seen the Employment Court dismiss a claim of ‘political opinion’ discrimination when a nurse’s anti-vaccination posts were directly contrary to the position taken by her employer. The dismissal was justified because it was not motivated by the nurse’s political opinions, but rather by her breach of the employer’s media policy and her undermining of the health authority’s public messaging on COVID-19 (Amanda Turner v Te Whatu Ora – Health New Zealand, in respect of the former Wairarapa District Health Board [2023] NZEmpC 158).

In Ms Lattouf’s case, there was no policy breach and her political views didn’t violate any formal rules or directions.  I believe her dismissal would likely be considered unjustified under New Zealand law as well.

While New Zealand courts have not frequently dealt with employment discrimination claims based on political opinion, such cases could start to become more common. A proposed amendment to the Employment Relations Act will limit unjustified dismissal claims to employees earning less than $180,000 per year. As a result, we could start to see higher earners increasingly rely on discrimination claims, including those involving political opinion, to challenge dismissals given they will no longer be able to bring a straightforward ‘unjustified dismissal’ claim.

Balancing politics and work

So where does the law draw the line between protected political expression and conduct that can justify dismissal?

To be protected, an opinion must first qualify as a “political opinion.” In the Lattouf decision, the Court held that political opinions include views about “the policies or actions of the government of a country or its armed forces,” and may extend to “the way media organisations report about such policies or actions.”

However, political opinion protections are not absolute. Employment law protects political expression, but only up to a point. Courts in both Australia and New Zealand have drawn a consistent line: if an employee breaches a valid, clearly communicated workplace policy, the dismissal is likely to be lawful, even if the breach involves a political opinion.

Where to from here?

For employees, the key is understanding not just whether an opinion is political, but how its expression interacts with workplace expectations and policies. For employers, clear policies and fair enforcement are essential.

Get in touch

If you would like to chat to Rachael about anything discussed in this column, please get in touch.

Special thanks to Ashlyn McNeely for her help researching the article.