Unlawful termination hearing is examining how and why ABC removed journalist from the Radio Sydney Mornings show in December 2023• Lattouf says unlawful termination case exposes ‘systemic racism and rot at heart of ABC’• Sign up for Guardian Australia’s free weekly media newsletter hereIan Neil SC, for the ABC, said it is important for Justice Darryl Rangiah to get to the truth of why Antoinette Lattouf was taken off air.Key to this, Neil says, is an understanding of a Microsoft Teams meeting between ABC managers and executives, including Lattouf’s line manager at Radio Sydney, Elizabeth Green, and the chief content officer, Chris Oliver-Taylor.That’s a powerful consideration to weigh against Ms Green’s recollection, leading to the conclusion that it’s an unresolvable factual issue.We do reiterate, what earthly reason would he have for lying, misrepresenting, what he had been told … two minutes before, to his superior. Continue reading…Unlawful termination hearing is examining how and why ABC removed journalist from the Radio Sydney Mornings show in December 2023• Lattouf says unlawful termination case exposes ‘systemic racism and rot at heart of ABC’• Sign up for Guardian Australia’s free weekly media newsletter hereIan Neil SC, for the ABC, said it is important for Justice Darryl Rangiah to get to the truth of why Antoinette Lattouf was taken off air.Key to this, Neil says, is an understanding of a Microsoft Teams meeting between ABC managers and executives, including Lattouf’s line manager at Radio Sydney, Elizabeth Green, and the chief content officer, Chris Oliver-Taylor.That’s a powerful consideration to weigh against Ms Green’s recollection, leading to the conclusion that it’s an unresolvable factual issue.We do reiterate, what earthly reason would he have for lying, misrepresenting, what he had been told … two minutes before, to his superior. Continue reading…
Here are the main points from the final hearing in the case:
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The ABC had defended the case in such an “objectionable” way that Antoinette Lattouf would seek additional compensation if her claim succeeds, her lawyer said.
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The ABC, however, said it was clear Lattouf was only taken off the air after she breached a direction not to post on social media about the conflict in Gaza.
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The ABC said the key to understanding this decision was a Microsoft Teams meeting and subsequent text messages sent by the chief content officer, Chris Oliver-Taylor, to the managing director, David Anderson.
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But Lattouf’s lawyers said “the ABC has been quite incapable of articulating, even at the point of submission … what direction was given, and in what terms”.
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The ABC rejected that Lattouf was dismissed because she has Lebanese heritage.
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Lattouf’s lawyers argued that if her claim was successful the judge should find the ABC also leaked a story to The Australian that “was particularly deleterious” to her, justifying the award of further compensation.
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The ABC rejected the proposition that Anderson and the former chair Ita Buttrose were concerned by the political opinion of Lattouf.
Enjoy the rest of the evening.
In an emotional press conference outside Sydney’s federal court at the conclusion of the case, Antoinette Lattouf said of her dismissal from the ABC and the fallout: “This saga has undoubtedly been the most difficult of my entire life.
“This case was never just about me, it was never about five days of work, it was about protecting the principles that should matter to all of us,” she said.
Speaking publicly for the first time since the start of the case earlier this month, Lattouf said she had held the ABC “in the highest regard” since she was a child, dreaming of hosting her own show on the broadcaster.
I have always cared so deeply about the ABC. When it functions as it should, when it flourishes, it makes our democracy stronger, it makes our democracy better. But when it fails to be independent, all Australians suffer … It is now glaringly clear to me and to millions of Australians that our ABC is in serious trouble … Now, watching its integrity unravel, is nothing short of devastating.
Lattouf said the “pain and humiliation” did not end with her sacking but was exacerbated by reporting of her termination by The Australian, within hours of the news being delivered to her, something her team argued in court came about from a leak from someone senior at the ABC.
Lattouf, hands shaking and holding back tears, thanked her legal team, members of the public who supported her, and family and friends.
“I have done what I have set out to do and now it’s in the court’s hands.”
And that’s the end of the hearing.
Justice Darryl Rangiah thanks the parties for the “vast amount of work they have put into this matter, and for their assistance” and has reserved his judgment (meaning we don’t know when, exactly, it will be made).
The cost of leaking ‘intimate details’ to The Australian
Boncardo adds that Justice Rangiah should “readily infer” that someone from the ABC leaked “intimate details” regarding Lattouf’s departure from the broadcaster to The Australian.
He says that such a finding would then have to be considered when considering compensation for Lattouf.
The ABC are responsible, in part, for that article, which was particularly deleterious to my client.
ABC ‘erected straw man’ argument on compensation issue, Lattouf’s lawyer says
Philip Boncardo, another barrister for Lattouf, says that the ABC had “erected a straw man” when it came to their argument about compensation for his client.
The broadcaster’s conduct had an immediate and subsequent impact on her existing psychological condition, and the evidence regarding that had not been challenged, Boncardo says.
Claims Lattouf’s political beliefs reflect ‘antisemitic hatred’ are ‘remarkable’, Fagir says
Fagir goes on to say that the categorisation by the ABC of Lattouf’s political beliefs as reflecting “antisemitic hatred” were “remarkable, and potentially divisive”.
If there were ever evidence that the ABC has a deeply partisan view on this issue, and has a hostile view to Ms Lattouf … that is it.
ABC argument ‘utterly confused and contradictory’, court hears
Fagir, for Lattouf, says the ABC has not made a clear argument about the directive it says it gave his client not to post about the Gaza conflict on social media.
He says its position has been “utterly confused and contradictory”.
Ultimately the ABC has been quite incapable of articulating, even at the point of submission … what direction was given, and in what terms.
Oshie Fagir, for Antoinette Lattouf, says the ABC has defended the case in such an “objectionable” way that he will seek additional compensation if his client is successful.
He says this includes the personal matters the ABC asked Lattouf about during cross-examination.
There are many aspects of the ABC’s case which are objectionable and that’s a matter we will deal with if and when we come to a penalty phase.
What emerged in the case was the ABC’s “shambolic treatment with severe consequences for a worker”, he says.
Oshie Fagir, for Lattouf, is now responding.
Taking Lattouf off air was not a punishment, ABC argues
Shortly before the discussion around compensation, Neil also said the ABC had not punished Lattouf.
He said that “taking someone off air is designed to protect the ABC, not to punish the employee”.
When Justice Darryl Rangiah asked if “it could be both”, Neil responded in part that there was no punishment if someone was paid for not working, as Lattouf had been.
“What is the punishment, we ask rhetorically,” he said.
Compensation should be ‘no more than modest’, ABC says
Neil, for the ABC, says that if the federal court found the broadcaster had contravened the act in dismissing Lattouf, she should only be awarded “modest” compensation.
He said they did not submit there should be no compensation, but that there was no evidence the ABC was aware of a pre-existing psychological condition.
But he said the ABC did accept it was a contributing factor to her psychological condition.
His submissions continue.
Final countdown
Neil, for the ABC, has spent some time working through aspects of employment law, including aspects of Lattouf’s contract, which go to the issue of whether she was terminated.
Neil said that her contract with the ABC had several clauses, including that the terms of her employment could be changed without notice, and that she could be terminated with an hour’s notice.
He has told the court he expects to wrap up his submissions about 3.30pm.
Ian Neil SC, for the ABC, is starting to emphasise the broadcaster’s defence: that Antoinette Lattouf was only taken off the air because she made the Human Rights Watch post on Instagram.
He says it is a central fact in the case that the ABC considered until 11.07am on 20 December 2023 that Lattouf would continue working for the broadcaster until the end of her five-day contract.
Neil said that correspondence between senior ABC figures, including the managing director, David Anderson, and the former chair Ita Buttrose, showed that the “ABC had carefully weighed the competing risks and decided to keep Ms Lattouf on air until the Friday, having put in place … mitigating plans”.
Those plans, he said, included that Lattouf had been told not to post anything on social media regarding the conflict in Gaza. Those plans were made to protect Lattouf and the ABC, he said.
But shortly after that, he said, the Instagram post Lattouf made the previous evening was discovered.
Everything that happened, the decision that she would not be kept on air, that she would not be required on air on the Thursday and the Friday, that all flowed from that one changed fact, that one circumstance.
Neil also said the ABC story based on the same Human Rights Watch report that was the subject of Lattouf’s social media post was “much more balanced and nuanced”.
“It’s very clear it’s reporting the subject of the report rather than endorsing them,” he said.
You’ll recall from our earlier reporting, Lattouf was let go after three days into a five-day fill-in stint on ABC Radio Sydney’s Mornings program when she shared the post that said Israel had used starvation as a “weapon of war” in Gaza.
We’re back
Ian Neil SC is continuing oral closing submissions for the ABC.
Lunch break
We will see you back here around 2.15pm.
Neil, for the ABC, says there is no evidence to support the hypothesis raised by Lattouf’s team that the decision for her to leave the broadcaster was partially due to her Lebanese heritage.
Lattouf’s lawyers submitted on Thursday that it was not the primary factor but had been a factor.
Neil said that Lattouf’s race was only mentioned twice in all the evidence, and neither of those occasions supported a contention that it contributed to her departure.
Neil has also again elaborated on the distinction between the ABC’s argument and Lattouf’s submissions regarding opinion.
He said the holding of an opinion is not significant, but how it is expressed is.
Neil gave the example of how it would be an unlawful for an employee to fire a staff member simply because they did not agree with their opinion, but it would be lawful if that staff member started espousing those beliefs to colleagues in a way which was offensive or unproductive.
Employers can’t be thought police. That’s the policy reason behind [the law].
The text message Rangiah is asked to rely on is from the chief content officer, Chris Oliver-Taylor, to the ABC managing director, David Anderson, and was sent at 12.29pm while the managing director was out to Christmas lunch with Ita Buttrose.
The content chief tells Anderson it “looks like” Lattouf has “breached editorial impartiality” but he has yet to confirm.
He follows that text up with another saying “confirming my view that she has breached our editorial policies whilst in our employment”.
“She also failed to follow a direction from her manager not to post anything whilst working with the ABC. As a result of this I have no option but to stand her down.”
Rangiah has to weigh up this text message against the manager’s [Elizabeth Green] testimony that she did not give Lattouf any such direction.