The Federal Court will hear from three ABC witnesses on Wednesday after former chair Ita Buttrose delivered a combative performance in the witness box.
The Federal Court will hear from three ABC witnesses on Wednesday after former chair Ita Buttrose delivered a combative performance in the witness box.
Hello and welcome to our live coverage of journalist Antoinette Lattouf’s unlawful termination case against the ABC.
I’m Michaela Whitbourn and I’ll be keeping you informed of the latest developments in the Federal Court in Sydney today.
If you’re just catching up on the trial now, here’s what you need to know: Lattouf was told not to return to work three days into a five-day casual contract as a fill-in Mornings presenter on ABC Radio Sydney in December 2023.
She alleges she was unlawfully terminated because of her political opinions about the Israel-Gaza war, which were not articulated on radio but on her social media accounts, as well as because of her race or national extraction as a woman of Lebanese and Arab and Middle Eastern descent.
The ABC took Lattouf off-air after she shared a post critical of Israel from non-governmental organisation Human Rights Watch on Instagram on December 19, 2023. She added the words: “HRW reporting starvation as a tool of war.”
She claims the ABC bowed to pressure from pro-Israel lobbyists in removing her from air. The broadcaster had received complaints about her appointment as a fill-in presenter even before the December 19 post, the court has heard.
Lattouf is seeking a range of orders from the Federal Court, including that the ABC pay her compensation and pecuniary penalties. She is also seeking declarations that the national broadcaster contravened the Fair Work Act by not complying with its enterprise agreement.
In addition, Lattouf has asked the court to make an order reinstating her “to a commensurate position to that from which the [ABC] dismissed her”, her lawyers say in court documents.
Benjamin Latimer, the ABC’s head of audio content, has started giving evidence.
Latimer is also based at the ABC’s Ultimo headquarters in Sydney.
During cross-examination by Lattouf’s barrister, Oshie Fagir, Latimer said he is the “top executive for the audio division” and there are about 500 employees within his remit.
Latimer agreed he gave a direction to the ABC’s Stephen Ahern, acting in the position of head of capital city networks, on Tuesday, December 18, 2023.
The court is taking a short break while Justice Darryl Rangiah deals with another case.
Green agreed she observed Lattouf in a state of “distress and upset” after she was told she was not required to work the final two days of her five-day casual presenting shift on ABC Sydney radio.
She agreed she said words to the effect that she had tried to stop this and “tried hard to keep” Lattouf.
“I believed it was coming from higher up. I understood it had been referred up,” Green told the court.
She said there had been “pressure from Monday”, December 18, 2023, the first day of Lattouf’s contract.
Green denied that she told Lattouf the decision was made by ABC managing director David Anderson.
Elizabeth Green, then ABC Radio Sydney’s content director and Antoinette Lattouf’s line manager, has agreed that she said at an internal meeting that she did not see anything wrong with a social media post that led to Lattouf being removed from air.
“Can I suggest to you that you … expressed the view that you did not see anything wrong with Ms Lattouf’s post?” Lattouf’s barrister said of the meeting on December 20, 2023.
“I did say that,” Green said.
The ABC took Lattouf off-air after she shared a post critical of Israel from non-governmental organisation Human Rights Watch on Instagram on December 19, 2023. She had added the words: “HRW reporting starvation as a tool of war.”
Green is now executive producer of ABC Radio’s Drive show.
Elizabeth Green, then ABC Radio Sydney’s content director and Lattouf’s line manager, has started giving evidence in the Federal Court.
She is based at the ABC’s Ultimo headquarters in Sydney and is now executive producer of ABC Radio’s Drive show.
Philip Boncardo, acting for Lattouf, has started his cross-examination. Green is asked about a discussion she had with the ABC’s Stephen Ahern, who was acting in the position of head of capital city networks on December 18, 2023.
She has said in an affidavit that she was asked to speak to Lattouf about her social media activity.
Boncardo put to Green that she told Lattouf in a phone call that the ABC had received “heaps of complaints” from pro-Israel lobbyists about her role as a casual fill-in presenter on ABC Sydney radio’s Mornings program in December.
“I said there had been a number of complaints received that I hadn’t seen,” Green told the court.
She said that she told Lattouf that she imagined they were from lobbyists.
Green told the court she believed she told Lattouf the ABC had “strict editorial guidelines” and it was “all about a perception of bias”.
“I said that she should avoid posting [on social media]. I remember saying that she should be mindful.”
Green said she told Lattouf she “thought she was doing a good job on the show”.
She said she was instructed to tell Lattouf to “keep a low profile on social media” and it “may be best not to post anything at all”.
She denied that she told Lattouf that she was angered that she was asked to have this conversation.
Boncardo put to Green that she did not say explicitly that Lattouf should not post anything about the Israel-Gaza war.
“I talked about that during the conversation, and so I believe it was clear. I believe I did,” Green said.
The trial has resumed before Justice Darryl Rangiah.
Ita Buttrose, who delivered a combative performance in court yesterday, served a five-year term as ABC chair that concluded in March last year.
During her evidence yesterday afternoon, Buttrose insisted she had “nothing to do” with Antoinette Lattouf’s abrupt exit from the airwaves.
Lattouf’s barrister, Philip Boncardo, referred to an email Buttrose sent ABC managing director David Anderson on December 20, 2023, after Lattouf was removed as the fill-in presenter of Sydney Mornings after three days of a planned five-day stint.
The court heard Buttrose forwarded Anderson an email from a listener thanking the ABC for taking Lattouf off-air. She wrote: “It’s nice to get congratulatory emails.”
“Well, it is,” she said in court. “They’re few and far between.”
Boncardo put to Buttrose: “You were happy with the outcome that my client had been fired, weren’t you?”
“No one’s ever happy with a dismissal of anyone. I don’t know why you think that. It’s the worst thing that can happen to anybody. I’m not happy, and I wasn’t happy,” Buttrose said.
“I didn’t wish her to be removed, I didn’t put pressure on anybody, it’s a fantasy of your own imagination. I had nothing to do with her dismissal.”
Boncardo put to Buttrose that “from the point you commenced receiving complaints about Ms Lattouf on the 18th of December … you wanted her to be fired”.
“No,” the former ABC chair replied.
She denied that her emails to Anderson on December 19 were making clear that this was her position.
“You were taking it upon yourself personally to email Mr [Chris] Oliver-Taylor [the ABC’s chief content officer] to make clear to him that, so far as you were concerned, the situation was not an acceptable one,” Boncardo pressed.
“No, that’s not true, and I didn’t personally write to Chris Oliver-Taylor. I wrote to Chris Oliver-Taylor with the complaints at the instruction of the managing director, David Anderson,” Buttrose said. Anderson’s evidence diverges on this point.
She denied she wanted Lattouf fired, that she sought to use her position as chair to prevail upon Anderson and Oliver-Taylor to replace her, or that she wanted her fired because of her views on Israel’s war on Gaza, because she was a pro-Palestinian activist and because she supported the human rights of Palestinians.
“The evidence you have given in respect to those denials is untrue,” Boncardo put to Buttrose.
“I have told the whole truth and nothing but the truth,” she said.
Former ABC chair Ita Buttrose appeared in the Federal Court witness box on Tuesday and was grilled about the circumstances in which Lattouf was removed from air.
She was also shown a series of emails she sent to the broadcaster’s managing director David Anderson and chief content officer Chris Oliver-Taylor before and after Lattouf’s exit.
The court heard Buttrose sent Anderson an email on December 19, 2023, which read: “Has Antoinette been replaced. I am over getting emails about her.”
She denied in court that she was urging him to sack Lattouf.
“I’m asking, ‘What’s going on, has Antoinette been replaced?’ ” she said. “If I wanted somebody removed, I would be franker than that.”
Oliver-Taylor said in an affidavit filed in court that Anderson forwarded this email to him. Oliver-Taylor said he took from it that “Ms Buttrose wanted Ms Lattouf to cease presenting Sydney Mornings”.
He said this “did not reflect my position at that time, which was that Ms Lattouf’s casual engagement would continue until its scheduled completion” on Friday, December 22, 2023.
“I did not consider that I was obliged to, or should, change my position to accommodate Ms Buttrose,” Oliver-Taylor said in his affidavit.
Buttrose said in a later email to Anderson: “I have a whole clutch more of complaints. Why can’t she come down with flu? Or Covid. Or a stomach upset? We owe her nothing, we are copping criticism because she wasn’t honest when she was appointed.”
The former ABC chair gave evidence yesterday that suggestions of an illness were “just a face-saving idea” to make it “easier” for Lattouf, but that Buttrose herself “didn’t need to save face”.
Oliver-Taylor said in his affidavit that Buttrose sent him six emails in the 19 minutes between 11.13am and 11.32am on December 20, hours before Lattouf was told she would not be required to work the final two shifts of the week. The first had the subject line “More complaints Antoinette 702”.
At 11.25, Buttrose emailed Oliver-Taylor: “I think we will keep getting these complaints until Antoinette leaves.”
Oliver-Taylor said he made the decision that Lattouf should be taken off-air on December 20, three days into her five-day contract, after he was alerted to her Instagram post sharing a report by non-governmental organisation Human Rights Watch about Israel. Lattouf had added the words: “HRW reporting starvation as a tool of war.”
“I formed a view that Ms Lattouf’s conduct had breached the Personal Use of Social Media Guidelines,” he said in his affidavit.
One of the controversial aspects of this case was the ABC’s initial argument that Lattouf was required to prove that there is “a Lebanese, Arab, or Middle Eastern ‘race’ ” as part of her claim that she was unlawfully terminated for reasons including her race or national extraction.
“Whether there is a Lebanese, Arab, or Middle Eastern ‘race’ is a complex multi-faceted question of fact. The facts must be proved. Ms Lattouf has led no evidence of any relevant fact,” the ABC’s barristers, Ian Neil, SC, and Vanja Bulut, said in submissions filed on January 20.
However, Neil told the court on Tuesday that the ABC “does not put in issue, that is, it does not dispute or contest that the Lebanese, Middle Eastern or Arab races exist, or that Ms Lattouf is one or more of those races”.
The ABC denies that it unlawfully terminated Lattouf’s employment because of her race or national extraction, or for any other reason. It is arguing her employment was not terminated at all, but she was not required to work the final two shifts of a five-day casual radio presenting contract.
The Federal Court will hear from three witnesses today:
- Elizabeth Green, then-ABC Radio Sydney’s content director and Antoinette Lattouf’s line manager;
- Benjamin Latimer, the ABC’s head of audio content; and
- Simon Melkman, who was then-acting editorial director.
Justice Darryl Rangiah will then hear closing submissions from the parties.
Lattouf alleges her employment was unlawfully terminated by the ABC, that her political opinion and race played a role in that decision and that the national broadcaster breached its enterprise agreement in doing so.
She had been engaged to present the Mornings show on ABC Radio Sydney as a casual fill-in host for five days from December 18, 2023, but was taken off-air after her third shift.
The ABC says in a written defence that it “did not terminate” Lattouf’s employment, “summarily or otherwise”. Instead, it claims her employment “ended by effluxion of time at the conclusion of [her] … rostered shift on 22 December 2023”. She was ultimately paid in January 2024 for all five shifts.
The national broadcaster says that “in accordance with the terms of [Lattouf’s] contract”, it “did not require [her] … to perform any work for the two shifts” on December 21 and 22, 2023, but that her employment was not terminated.
Federal Court Justice Darryl Rangiah will have to decide whether Lattouf was sacked and, if so, whether this was unlawful.
The Fair Work Commission’s Deputy President Gerard Boyce said in a decision in June last year that the employment relationship between Lattouf and the ABC was “terminated at the ABC’s initiative”.
However, Rangiah is not bound by that finding. As Boyce explained in his decision last year, the FWC has a limited role in unlawful termination cases.
The commission conducts a conference between the parties to assist them to resolve their dispute by agreement, or issues a certificate if a resolution can’t be agreed. That certificate paves the way for proceedings to be filed in court.