Political Opinion, the Israel/Gaza War and Unlawful Termination, Court Awards $70,000 to Antoinette Lattouf for Emotional Distress After ABC Dismissal Damages for Mental Harm in a General Protection Claim
The Federal Court has awarded journalist Antoinette Lattouf $70,000 in compensation for mental harm after finding that the ABC’s unlawful termination of her employment caused significant psychological injury.
The award was made under section 545 of the Fair Work Act 2009 (Cth) (FWA), which empowers the Court to grant compensation where a person suffers loss due to a contravention of the FWA, including dismissal for a reason prohibited under section 772. Section 772 prohibits termination based on, among other things, race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, disability, marital status, family or carer’s responsibilities, subjection to family or domestic violence, pregnancy, religion, political opinion, national extraction, or social origin.
Lattouf’s case, determined by Justice Rangiah, confirms that the Court may award damages for mental harm where an employee is dismissed for a prohibited reason. However, the scope of compensation must be confined to harm caused by the termination itself not unrelated psychological injury or distress.
The Unlawful Termination
Lattouf whilst employed by the ABC made a number of social media posts expressing her views on the Israel-Gaza war. The core theme of her posts was condemnation of the mass killing of Palestinian civilians by Israeli forces. Some posts also acknowledged the killing of Israeli civilians by Hamas.
After the posts gained public attention, the ABC received complaints from members of the public alleging Lattouf’s views were anti-Semitic, that she lacked impartiality, and that she was unsuitable to present ABC programs. These complaints were found to be part of a coordinated campaign by pro-Israel lobbyists to remove her from the air.
On Wednesday, 20 December 2023, ABC management became aware that Lattouf had reposted a Human Rights Watch video titled “The Israeli Government is using starvation as a weapon of war in Gaza” on Instagram, with the caption “HRW reporting starvation as a tool of war.” The same report had already been the subject of a story on ABC News. Senior managers responded with what was described as “a state of panic.”
That day, the ABC decided to remove Lattouf from the air. She was summoned to a meeting and informed that she had shared a potentially controversial post in breach of ABC policy. She was told she would not be required for her remaining two shifts and was directed to leave the premises. No specific policies were identified, and Lattouf was not afforded an opportunity to respond. Her employment ended abruptly.
Latouff asserted the reasons for termination included her political opinions and her race and natural extraction.
If it is alleged the employment of an employee was terminated for reasons that include particular attributes, characteristics or conduct specified in section 772(1) of the FWA then section 783 imposes an onus on the employer to prove the termination of employment was not for reasons that included any such attributes, characteristics or conduct.
Justice Rangiah found the termination effected without giving Lattouf a chance to respond to allegations of editorial misconduct was for reasons including her political opinions and the termination contributed to the deterioration of her mental health. He held that section 772(1)(f) of the FWA protects both the holding and expression of political opinion. As the dismissal was found to have been based on political opinion, it was unlawful and the mental harm that flowed from it entitled her to compensation.
Justice Rangiah found that the ABC contravened s 772(1) of the FWA by terminating Lattouf’s employment for reasons including that she held political opinions opposing the Israeli military campaign in Gaza but rejected Ms Lattouf’s allegations that the reasons for her termination included her race or national extraction.
Compensation Law Grounded in Causation and Reasonableness
Damages for emotional distress must relate directly to the harm caused by the employer’s unlawful act. The Court must identify a clear causal link between the contravention and the loss.
Justice Rangiah reviewed the case law relevant to the approach to take in the assessment of compensation and cited Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCAFC 333, where Barker J held:
“One of the principal tasks is to ensure there is an appropriate causal connection between the contravention and the loss claimed.”
This was echoed in Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371, which emphasised that compensation must not exceed the actual consequences of the unlawful conduct.
Justice Rangiah also referred to Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia [1995] IRCA 352, where Lee J stated:
“The Court will… have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.
It will consider the detriment occasioned to the employee… and the extent to which it is reasonable to compensate the employee for such consequences.”
This approach was consistent with Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, where the Full Court held:
“The task… was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions).”
Emotional Harm: A Difficult Measure
In arriving at the $70,000 figure, Justice Rangiah acknowledged that valuing non-economic loss such as distress, humiliation, or psychiatric deterioration is imprecise. It is not a formulaic process, but one based on judicial estimation.
In Transport Workers’ Union of Australia v Qantas Airways Ltd (Compensation Claim) [2024] FCA 1216, Lee J explained:
“The assessment of compensation for emotional distress… is inherently imprecise and non scientific… The Court must, doing the best that it can, award an amount it considers to be reasonable compensation for the non-economic loss sustained.”
Further, in Patrick Stevedores Holdings Pty Ltd v CFMMEU (No 4) [2021] FCA 1481, Lee J stated:
“Other factors that have contributed to a loss are beside the point unless they point to the loss not being causally related or the proposed compensatory order being other than ‘appropriate’.”
This principle was central to Ms Lattouf’s case.
Competing Causes and the Limits of Liability
Justice Rangiah accepted that the termination exacerbated Ms Lattouf’s existing depressive condition, contributing to panic attacks, poor sleep, anxiety, and strained personal relationships. He relied on the expert opinion of psychiatrist Dr Nigel Strauss, who concluded that the dismissal materially worsened her psychiatric state.
However, the Court was careful to distinguish between distress caused by the termination and that caused by other external events. Lattouf had received threats and experienced distress related to broader public debate and online scrutiny of her political views.
Justice Rangiah found:
“I find Ms Lattouf’s condition was also exacerbated by other factors, including ruminations about the conflict in Gaza and the threats she received. These are not causally related to her termination.”
Justice Rangiah continued:
“The extent to which the termination… exacerbated her underlying psychiatric condition cannot be separated out from other factors with any precision. Nevertheless, I accept the termination contributed significantly… and that the exacerbation will resolve in time.”
This careful delineation applied when assessing the claim ensured that the compensation awarded was proportionate to the ABC’s legal responsibility, not inflated by harms arising from broader political controversy or personal circumstance.
A Legal and Emotional Balancing Act
The Lattouf case serves as a reminder that while compensation for psychological distress can be awarded if an employee is terminated for one or more reasons specified in section 772 of the Fair Work Act, it is strictly confined to harm that is causally linked to the employer’s unlawful conduct. The award must reflect a reasoned assessment of the consequences flowing from the contravention not from unrelated life events or other reasons.
The decision illustrates how courts navigate the line between acknowledging emotional injury and applying legal discipline to ensure awards compensate for the harm caused by the prohibited action and not harm attributable to other causes.
Fair Work Commision
