A highly charged 18-month dispute over whether the ABC acted unlawfully when casual radio presenter Antoinette Lattouf was abruptly taken off air in 2023 will end on Wednesday when Justice Darryl Rangiah hands down his judgment in the federal court.
Lattouf began hosting the ABC Sydney Mornings radio program on Monday, 18 December 2023. The next day she reposted a Human Rights Watch post reporting the Israeli military using starvation as a weapon of war in Gaza.
After the program aired on Wednesday, Lattouf was called into a meeting and told she would not be hosting the final two mornings set out in her contract because of the post.
The refusal of the ABC to allow Lattouf to finish her on air shifts sparked a legal fight which damaged the ABC’s reputation and has already cost taxpayers more than $1m in external legal fees.
The ABC’s position was, and still is, that Lattouf’s employment was not actually terminated as she was paid for the full five days – or, in their words, that “her employment … ended by effluxion of time at the conclusion of the applicant’s rostered shift on 22 December 2023.”
Last June, the Fair Work Commission found she was sacked, paving the way for the unlawful termination case in the federal court.
Lattouf’s case is that the ABC dismissed her for reasons that included her race and political opinion. The court heard those opinions included her opposition to the Israeli military campaign in Gaza and her support of Palestinians’ human rights. She also contends the ABC failed to comply with the provisions on termination in its enterprise agreement.
At 10.15am Wednesday in a judgment that will be livestreamed on the federal court’s YouTube account, Rangiah will reveal whether Lattouf’s case succeeded, and if so, how much the ABC has to pay the journalist in non-economic loss for pain and suffering. She has asked for between $100,00 and $150,000.
During the seven-day trial, which was live-streamed, a number of the ABC’s top brass were called to give evidence about the events leading to Lattouf’s sacking, including former ABC chair Ita Buttrose, former managing director David Anderson, chief content director Chris Oliver-Taylor and Sydney radio manager Steve Ahern.
The ABC told the court it received multiple emails from members of a pro-Israel group that was critical of the broadcaster for hiring Lattouf, who had an active social media profile critical of Israel’s actions.
The ABC denied it was influenced by the email-writing campaign and said Lattouf was taken off air because she was advised “not to post anything that could be perceived as controversial on your socials”.
The court heard Anderson sent a late-night text to Oliver-Taylor after taking a deep dive into Lattouf’s social media accounts. “I think we have an Antoinette issue,” Anderson wrote on Monday night.
Documents lodged with the federal court showed Buttrose sent six emails in rapid succession detailing complaints about Lattouf to Oliver-Taylor in the hours leading up to the casual presenter’s dismissal.
Lattouf’s line manager, Elizabeth Green, told the court she felt pressure emanating from above from day one: “There was pressure from the Monday to get rid of Ms Lattouf.”
Buttrose told the court she did not pressure Anderson to take Lattouf off air even though she believed it was “quite apparent” the journalist was an “activist” in relation to the Israel-Gaza conflict.
The ABC’s multi-layered management structure and labyrinthine internal policies came under the microscope in court. Oliver-Taylor, who made the final decision to take her off air, told the court he “confused” the ABC’s social media, editorial and impartiality policies.
The University of Sydney’s professor of labour law, Shae McCrystal, says Rangiah has to decide whether the ABC contravened either or both sections 50 and 772 of the Fair Work Act.
Section 50 says an employer must abide by the provisions of the staff enterprise agreement when terminating someone’s employment, and section 772 says an employer can not terminate an employee on the basis of their race or political opinion.
Lattouf’s lawyers argued she was “was dismissed in a way that did not comply with the provisions on termination within the enterprise agreement,” McCrystal told Guardian Australia.
“So the argument that Lattouf’s lawyers have made is that the decision to terminate her employment was made for a reason, or reasons that include her race and or her political opinion.
“Once you make that allegation under the Fair Work Act, the onus then shifts to the employer to establish that it did not act for the reason so alleged.
“That’s why you’ve got Buttrose and other senior ABC people testifying, because it came down to determining the reason she was terminated.”
In final submissions, Lattouf’s legal team said the court should find the ABC contravened the act and award her “compensation for non-economic loss for hurt, humiliation, pain and suffering and the exacerbation of a psychiatric illness”.
The ABC’s final submission denies Lattouf’s employment was terminated; that the enterprise agreement was contravened and that the decision “was motivated to any degree by Ms Lattouf’s political opinions, race or national extraction”.
