WEBVTT - Can you be fired for posting about Gaza?

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<v S1>From the newsrooms of the Sydney Morning Herald and The Age.

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<v S1>This is the morning edition. I'm Samantha Selinger Morris. It's Monday,

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<v S1>February 10th. There's been a bit going on in the

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<v S1>world of media in Australia. Just last week, a court

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<v S1>case began over the ABC's sacking of high profile presenter

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<v S1>Antoinette Lattouf, while in another case, cricket commentator Peter Lawlor

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<v S1>was told to pack his bags by a commercial radio station.

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<v S1>And the drama is all over what they posted on

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<v S1>social media about the war in Gaza. But what do

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<v S1>these cases mean for everyone else? Can your employer sack

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<v S1>you if you post something about this war? Today, employment

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<v S1>lawyer Cilla Robinson answers this vexed question, but first, media

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<v S1>writer Callum Jaspin brings us up to speed with the

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<v S1>case of the ABC versus Antoinette Lattouf. So, Callum, there's

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<v S1>been two prominent sackings of journalists who've posted on their

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<v S1>social media accounts about the war in Gaza. First off,

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<v S1>you've been in court all week for the Antoinette Lattouf trial.

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<v S1>So can you tell us what this case is all about?

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<v S2>Yeah, Lattouf is arguing she was unlawfully terminated three days

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<v S2>into a five day contract as a fill in presenter

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<v S2>on ABC Radio Sydney around 14 months ago.

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<v S3>ABC Radio Sydney mornings with Antoinette Lattouf.

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<v S4>Filling in for Sarah McDonald.

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<v S5>Later this hour, it's time for radical honesty.

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<v S2>The sacking mostly surrounds a post that she reposted on

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<v S2>her Instagram that quoted a report from Human Rights Watch,

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<v S2>which is a very well known NGO. She had shared

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<v S2>this post with the caption HRW R.W. reporting starvation as

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<v S2>a tool of war. Her lawyers have claimed this week

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<v S2>in the Federal Court that members of a lobby group

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<v S2>had conducted a spectacularly successful campaign to have her taken

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<v S2>off air, which included sending a barrage of complaints to

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<v S2>the ABC's managing director, David Anderson, and the former chair

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<v S2>Ita Buttrose.

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<v S6>Before the court accused of sacking Antoinette Lattouf for her

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<v S6>political beliefs. Mrs. Lattouf, how are you feeling about the case?

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<v S2>The ABC have denied Lattouf was sacked because she was

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<v S2>paid out for the full five days of her contract

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<v S2>at the time, and they've also denied that its most

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<v S2>senior executives were influenced by pro-Israel lobbyists in their decision making.

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<v S1>Okay, so there's obviously been a flurry of coverage about

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<v S1>this case. It's generated heaps of interest, but what are

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<v S1>the key things that have been have been revealed in

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<v S1>the trial over the past week.

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<v S2>Well, we started off on Monday morning with Latif's barrister

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<v S2>Oshi Phagwara putting together the ABC's opening arguments. Um, in

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<v S2>that there were referenced to many, many emails and texts

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<v S2>between the top executives at the ABC in the week

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<v S2>that Latif was on air. This included a lot of

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<v S2>internal emails which revealed that Miss Buttrose, she wrote in

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<v S2>an email to David Anderson, who was the managing director

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<v S2>at that time, she said, I quote, I have a

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<v S2>whole clutch of complaints. Why can't she come down with

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<v S2>the flu or Covid or a stomach upset? We owe

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<v S2>her nothing. The court was told. The ABC's chief content officer,

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<v S2>Chris Oliver Taylor, was also told on the evening of

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<v S2>the first day Latif was on air by David Anderson.

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<v S2>I think we have an Antoinette issue.

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<v S1>And do we know who actually made these complaints to

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<v S1>the ABC?

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<v S2>Yeah. So in David Anderson's cross-examination on Thursday, he said,

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<v S2>or at least he confirmed that he was later told

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<v S2>that these complaints are the nexus of them was in

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<v S2>a WhatsApp group, and it was described as a campaign

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<v S2>because he said that there had been about 40 to

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<v S2>50 emails that came through that were very similar in

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<v S2>their nature, but slightly different in the way that they

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<v S2>were topped and tailed.

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<v S1>Okay, but Antoinette Lattouf, she's arguing that what she actually

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<v S1>posted during her few days at the ABC, that it

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<v S1>wasn't controversial. Right?

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<v S2>Yeah. She told the court this week that the information

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<v S2>she posted, um, was done under the belief that it

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<v S2>was factual information after she had seen that the same

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<v S2>report that she was referencing, uh, had had been reported

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<v S2>on by both the ABC and the BBC, which I

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<v S2>think most people would consider to be reputable sources. She

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<v S2>had a discussion with the ABC's Sydney content director, Elizabeth Green,

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<v S2>on her first day. And this is a sort of

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<v S2>key part to to the whole case. Um, where the

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<v S2>ABC is arguing she was given a directive not to

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<v S2>post about this particular topic, that being the Israel-Gaza conflict

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<v S2>during her five day stint on air, um, at ABC Sydney,

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<v S2>because there was a risk that the ABC, the ABC's impartiality,

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<v S2>might be brought into question. Now, Lattouf and her team

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<v S2>are arguing, or at least positioning themselves, that this wasn't

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<v S2>a directive. It was more of a suggestion that prompted

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<v S2>a conversation. And the phrase that's been brought up in

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<v S2>court quite a few times is that, green said. It

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<v S2>might be best not to or something to to that effect.

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<v S1>So is this at the crux of the trial then?

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<v S1>You know, whether it was a directive that she not

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<v S1>post about Gaza or whether it was just a suggestion,

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<v S1>because does this come to the heart of whether Antoinette

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<v S1>Lattouf actually breached anything in her contract or ABC policies

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<v S1>by what she's posted online?

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<v S2>Yeah. That's right. So the ABC has said she was

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<v S2>removed or taken off air because she didn't follow a directive. Um,

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<v S2>whereas Antoinette has said in her cross-examination by the ABC's barrister,

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<v S2>Ian Neil, that she came to an agreement with green

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<v S2>that she could post factual information from reputable sources.

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<v S7>I never signed up for this. I didn't sign up.

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<v S7>To be the target of so much hate and death

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<v S7>threats from bots and randoms.

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<v S1>And so also this week, Callum prominent cricket commentator Peter Lawlor.

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<v S1>He was dumped by radio station Sen.

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<v S8>Journalist Peter Lawlor has been dismissed as an SN contributor

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<v S8>over his support online for Palestine Live to Holly Stearns. Now, Holly,

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<v S8>what's happened?

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<v S1>So tell us what's happened there.

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<v S2>Yes, this was a story that came out coming at

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<v S2>a time where there has been a lot of attention

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<v S2>on this. Lawlor's feed includes reposts of news stories about

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<v S2>Israeli attacks in Gaza, and about the release of Palestinian

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<v S2>protesters from Israeli jails. He, of course, is the former

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<v S2>chief cricket writer at The Australian, and he released a

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<v S2>statement on Monday night in which he said he received

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<v S2>two calls from senior management at RSN. Uh, during the

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<v S2>final day, I believe, of the Australia Sri Lanka Test

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<v S2>in Galle, um, to to let him know that he

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<v S2>would no longer be working for them. He said I

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<v S2>was told in one call there was serious organisations making

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<v S2>complaints and another I was told that this was not

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<v S2>the case. Perhaps I misunderstood. I was told there were

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<v S2>accusations I was anti-Semitic, which I strongly object to. I

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<v S2>was told my retweeting was not balanced and insensitive to

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<v S2>one side that many people had complained. Send chief Craig

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<v S2>Hutchinson released a statement after saying, Peter and I have

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<v S2>a different view of the impact of that in the

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<v S2>Australian community, and cricket is a celebration of differences and

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<v S2>nationalities and a place where our Asian audience can escape.

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<v S2>He also said we respect Pete as a journalist and

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<v S2>a long time contributor to the game, but also acknowledged

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<v S2>the fear that many families in our community feel right now.

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<v S1>Well, thank you so much for your time.

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<v S2>Thank you.

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<v S1>After the break, employment lawyer Cilla Robinson on if your

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<v S1>employer can sack you for what you post on social media. So, Cilla,

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<v S1>thank you so much for joining us on the Morning Edition. Now,

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<v S1>obviously the Israel-Gaza war has opened up a minefield, really,

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<v S1>not only in the media but for many companies. So

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<v S1>can you just take us through the legalities at play here?

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<v S1>I mean, can an employer formally reprimand or even sack

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<v S1>an employee for posting about this conflict?

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<v S9>Look, the short answer to your question is yes, but

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<v S9>it depends on the circumstances. Employers can absolutely take action

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<v S9>against employees for their social media posts, including reprimanding them

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<v S9>with informal or written warnings or even terminating their employment.

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<v S9>If an employee's social media activity damages the company's reputation

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<v S9>or breaches company policy. So look, the case law supports

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<v S9>the notion that they, as employers can can monitor employees

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<v S9>social media Use beyond the workplace. I think that's a

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<v S9>really important thing. Um, one of those common misconceptions and

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<v S9>the concept of bringing the company into disrepute is often

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<v S9>cited in these cases. So, for example, if an employee

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<v S9>publicly criticizes their employer, discloses confidential information or says, you know,

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<v S9>derogatory remarks about a colleague, for example, that could absolutely

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<v S9>justify dismissal. However, context is key. Employers basically need to

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<v S9>consider the nature of the post, the employee's role, the

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<v S9>potential impact on the workplace, and whether there's a connection

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<v S9>between the social media context and the person's employment before

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<v S9>deciding to take disciplinary action or terminate their employment. So look,

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<v S9>most medium sized and large organizations have social media policies

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<v S9>in place that guide the employees appropriate use to protect

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<v S9>the employer's interests and reputation, and a breach of such

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<v S9>a Such a policy, of course, where it adversely impacts

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<v S9>the employer's image or reputation, can absolutely lead to disciplinary action,

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<v S9>including dismissal.

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<v S1>And so are journalists in a particularly unique position in that,

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<v S1>you know, there's obviously an expectation that we remain impartial. Like,

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<v S1>are we sort of judged by an even sort of harsher,

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<v S1>I guess, bar?

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<v S9>Absolutely. It's a it's a great question. And journalists operate

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<v S9>in an unusual landscape where their personal social media use

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<v S9>is closely intertwined with their professional responsibilities. And so they

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<v S9>do have this unique role that most employees don't necessarily

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<v S9>have that requires them to maintain impartiality and objectivity. So,

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<v S9>you know, a journalist has to ensure that their personal

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<v S9>interests and beliefs don't undermine that professional integrity. And, you know,

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<v S9>given the digital era that we live in, where social

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<v S9>media is actually the primary news source for many, maintaining

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<v S9>that journalistic integrity is is crucial. So personal political opinions

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<v S9>expressed on social media can absolutely, in some circumstances, conflict

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<v S9>with a journalist's duty to remain unbiased, potentially affecting not

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<v S9>only their credibility but the credibility of of their employer.

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<v S1>Okay. And I really want to broaden this out to,

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<v S1>of course, companies that are outside the media, as I

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<v S1>imagine most listeners would be, because is the situation different

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<v S1>if they're actually a contractor? Because I know that in

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<v S1>the Antoinette Lattouf case, she said, you know, before she

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<v S1>started this short stint working for the ABC as a

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<v S1>fill in presenter, that she thought she would be protected,

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<v S1>that nobody could fire her because she was, quote, an

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<v S1>independent and freelance journalist.

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<v S9>So, look, the situation can differ significantly based on whether

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<v S9>someone is a permanent employee or a or a contractor.

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<v S9>So I mean, as you'd be aware, contractors often have

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<v S9>less job security and fewer protections compared to an employee,

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<v S9>as their relationship essentially with the organisation is typically governed

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<v S9>by the terms of their contract. So policies also social

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<v S9>media policies aren't always expressed to apply to contractors, so

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<v S9>that couldn't be a technical difference for them. But they

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<v S9>are absolutely protected by discrimination laws based on political opinion. Um,

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<v S9>and so, um, you know, employer may have more leeway

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<v S9>to terminate a contract based on the terms that they

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<v S9>are agreed upon. Um, and yes, the Lattouf case, her

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<v S9>belief that the freelance status provided her with greater protections

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<v S9>does highlight a common misconception.

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<v S10>Well, I really want to pick up on something that.

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<v S1>You've just mentioned, which is, you know, the protections that

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<v S1>employees do have against discrimination. So can you talk us

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<v S1>through what protections do exist in the law that do

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<v S1>prevent an employer from sacking an employee because of their

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<v S1>political opinion?

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<v S9>Sure. So as I mentioned, you've got the Fair Work Act.

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<v S9>So that provides protections for employees against adverse action based

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<v S9>on their political opinion. So this protection isn't absolute. Employers

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<v S9>can impose reasonable requirements on social media use to used

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<v S9>to protect their interests and maintain their reputation. So for journalists,

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<v S9>the obligation to remain impartial adds that extra layer of

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<v S9>complexity that we spoke about. So while those political opinions

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<v S9>are protected, if an employee's expression in these opinions conflicts

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<v S9>with their job responsibilities or the employees interests, it can

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<v S9>lead to these challenging situations like we have in in

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<v S9>the case. So I think employers basically have to carefully

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<v S9>balance considerations to ensure that they're not infringing upon the

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<v S9>protected rights of the employees whilst maintaining, you know, their

0:14:06.929 --> 0:14:08.530
<v S9>operational integrity.

0:14:08.530 --> 0:14:09.410
<v S10>So it seems like there's.

0:14:09.410 --> 0:14:13.010
<v S1>Two real key factors, I guess, that are almost potentially

0:14:13.010 --> 0:14:15.250
<v S1>competing against each other. You know, you've got the protection

0:14:15.250 --> 0:14:17.530
<v S1>of political opinion and then you've got the employer's social

0:14:17.530 --> 0:14:20.330
<v S1>media policy. So does one trump the other, like how

0:14:20.450 --> 0:14:22.410
<v S1>is an employee meant to balance this?

0:14:22.570 --> 0:14:24.970
<v S9>It can be a complex issue. And, you know, ordinarily

0:14:24.970 --> 0:14:27.530
<v S9>you think, you know, legislation sits up here or a

0:14:27.530 --> 0:14:30.450
<v S9>policy sits, you know, down here in terms of order

0:14:30.450 --> 0:14:33.880
<v S9>of significance, but it is a complex issue. Social media

0:14:33.880 --> 0:14:37.760
<v S9>policies are designed to protect the company's reputation, while the

0:14:37.760 --> 0:14:41.920
<v S9>legal protections for political opinion safeguard employees rights. So in

0:14:41.920 --> 0:14:44.920
<v S9>these cases where there is a conflict, the specifics of

0:14:44.920 --> 0:14:49.479
<v S9>the situation, including the nature of the post and its impact, um,

0:14:49.520 --> 0:14:52.880
<v S9>will determine which takes precedent, essentially. So employers need to

0:14:52.920 --> 0:14:56.960
<v S9>balance these considerations quite carefully, ensuring that their policies are

0:14:56.960 --> 0:15:01.440
<v S9>reasonable and don't infringe upon protected rights while still safeguarding

0:15:01.440 --> 0:15:04.960
<v S9>their interests. And, you know, you'll see that, you know,

0:15:05.000 --> 0:15:08.480
<v S9>media organizations, social media policies are quite different from your

0:15:08.480 --> 0:15:11.440
<v S9>average organization. It's a more complex issue for them. But

0:15:11.440 --> 0:15:14.400
<v S9>I think, you know, defining boundaries is really important so

0:15:14.400 --> 0:15:18.480
<v S9>that the companies can help employees navigate the line between

0:15:18.480 --> 0:15:21.400
<v S9>personal freedom and professional obligations by just giving them clear

0:15:21.440 --> 0:15:26.120
<v S9>guidelines and training so that employees can understand that their

0:15:26.120 --> 0:15:29.880
<v S9>social media activity, even outside of work hours, in their

0:15:29.880 --> 0:15:33.580
<v S9>in their personal capacity. Can absolutely have professional consequences. And

0:15:33.580 --> 0:15:36.940
<v S9>I think also companies should foster an environment where employees

0:15:36.940 --> 0:15:39.860
<v S9>do feel comfortable expressing themselves. We want people to bring

0:15:39.860 --> 0:15:42.860
<v S9>their full selves to work, but they do need to

0:15:42.860 --> 0:15:46.060
<v S9>understand the potential impact on on their careers as well,

0:15:46.620 --> 0:15:48.260
<v S9>if they're seen to overstep.

0:15:48.540 --> 0:15:50.780
<v S1>And do you have any guidelines? I guess, like, what's

0:15:50.780 --> 0:15:53.980
<v S1>the takeaway here for listeners who may rightly feel strongly

0:15:53.980 --> 0:15:57.460
<v S1>about expressing their opinion on the Israel-Gaza conflict? I mean,

0:15:57.500 --> 0:16:00.500
<v S1>can they express their opinions on this issue, or should

0:16:00.500 --> 0:16:02.900
<v S1>they just not be saying anything on social media?

0:16:03.380 --> 0:16:06.980
<v S9>Oh, look, I think that's the million the million dollar question. Um,

0:16:06.980 --> 0:16:11.140
<v S9>it is it's fraught with risk even for, um, people

0:16:11.140 --> 0:16:17.180
<v S9>that aren't, uh, journos. Um, because quite often, um, you know,

0:16:17.180 --> 0:16:19.620
<v S9>especially for talking about something like LinkedIn, for example, where

0:16:19.620 --> 0:16:22.420
<v S9>your company is, is front and center. So I think

0:16:22.700 --> 0:16:25.580
<v S9>it's important that if people are expressing views that they

0:16:25.580 --> 0:16:27.780
<v S9>are doing so and making clear that it is their

0:16:27.780 --> 0:16:31.560
<v S9>views and not the views of their organization. Um, ideally

0:16:31.560 --> 0:16:36.880
<v S9>their presenting views in a factual way, um, that aren't inflammatory. Employers,

0:16:36.880 --> 0:16:40.400
<v S9>if they're doing the right thing, are looking for impartiality.

0:16:40.400 --> 0:16:44.000
<v S9>They're looking for fairness on how their employees present information,

0:16:44.040 --> 0:16:48.520
<v S9>particularly on contentious issues. But there is always a risk

0:16:48.600 --> 0:16:53.040
<v S9>that even if you're, you know, an accountant or, you know,

0:16:53.040 --> 0:16:56.440
<v S9>a PA or whatever, um, you know, a customer, some

0:16:56.440 --> 0:17:00.200
<v S9>stakeholder might see that and it might cause significant implications

0:17:00.200 --> 0:17:02.880
<v S9>for your business. So I don't think that anyone has

0:17:02.880 --> 0:17:07.399
<v S9>just carte blanche to do whatever they want. Um, you know,

0:17:07.440 --> 0:17:09.480
<v S9>if there's a link to the employer, if there's a

0:17:09.520 --> 0:17:12.560
<v S9>nexus to your employment, there is always a risk that

0:17:12.560 --> 0:17:14.920
<v S9>it could come back to, to bite you.

0:17:17.480 --> 0:17:20.480
<v S1>Well, thank you so much for your time.

0:17:20.600 --> 0:17:21.240
<v S9>My pleasure.

0:17:34.140 --> 0:17:37.740
<v S1>Today's episode of The Morning Edition was produced by Tammy Mills,

0:17:37.740 --> 0:17:41.820
<v S1>with technical assistance by Tom Compagnoni. Our head of audio

0:17:41.940 --> 0:17:45.179
<v S1>is Tom McKendrick. The Morning Edition is a production of

0:17:45.180 --> 0:17:47.820
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0:18:06.300 --> 0:18:09.620
<v S1>in your inbox every day. Links are in the show. Notes.

0:18:10.380 --> 0:18:14.220
<v S1>I'm Samantha Selinger. Morris. This is the morning edition. Thanks

0:18:14.220 --> 0:18:14.859
<v S1>for listening.