Antoinette Lattouf treated differently to ABC’s Laura Tingle, Patricia Karvelas: lawyer
Antoinette Lattouf’s lawyers argue her ‘unprecedented’ dismissal was based on a ‘stereotyped assumption’ not applied to other ABC presenters like Laura Tingle and Patricia Karvelas.
Antoinette Lattouf has argued her allegedly unlawful dismissal was orchestrated by four key ABC executives based on a ‘stereotyped assumption’ not applied to other journalists such as Laura Tingle and Patricia Karvelas.
On the first day of closing statements for the former ABC radio presenter’s Federal Court case against the ABC, Ms Lattouf’s lawyers said four senior managers were the ultimate decision makers behind her dismissal: outgoing managing director David Anderson, former chair Ita Buttrose, former content chief Chris Oliver-Taylor and audio content head Ben Latimer.
She argued her allegedly unlawful dismissal was a “purely pragmatic” decision by the ABC.
Ms Lattouf’s barrister Oshie Fagir said even if the alleged orchestrators would not generally intervene in the contract of a temporary presenter, the complaint campaign against Ms Lattouf by pro-Israeli lobbyists was so ardent it drove them to defy protocol.
“We say that Mr Anderson and Mr Oliver-Taylor were decision makers in the conventional sense that they exercised authority to dismiss Ms Lattouf, and that Ms Buttrose and Mr Latimer were decision makers in the broader sense … being people who materially influenced the decision to dismiss,” Mr Fagir told Justice Darryl Rangiah.
“This is a matter of actual authority (in who may decide to fire an employee), not a matter of mere importance (within the company hierarchy). But on our view of things, Your Honour might consider that Mr Oliver-Taylor was contemplating acting without express approval (from Mr Anderson in deciding to oust Ms Lattouf) because he knew what Mr Anderson wanted.
“(Mr Anderson) had no desire whatsoever to ensure that fairness was extended to Ms Lattouf.”
Mr Oliver-Taylor was savaged by Mr Fagir, who argued the former content chief used Ms Lattouf’s sharing of a Human Rights Watch Instagram post - alongside the caption “HRW reporting starvation as a tool of war” - as a “pretext” for ousting her.
“(It is in the) context of that influence, pressure being exerted by the managing director and the chair, that this issue of the post materialises, and he uses that as a pretext to deliver what he wanted and what the organisation wanted,” Mr Fagir said.
“That is why the reasoning in relation to the direction and the potential breach of policy makes absolutely no sense.
“Mr Oliver-Taylor, the court would infer, does not normally sanction employees because they may have breached a policy. He does not normally proceed in an irrational and inexplicable manner.
“None of it makes sense at all, utterly abnormal. An explanation for that, and the reason that all of this evidence is rife with implausibilities and contradictions and non sequiturs, is that it was all a pretext.”
Mr Fagir said the dismissal hampered the ABC’s commitment to impartiality, given that Ms Lattouf’s personal politics were considered over her work and conduct in deciding to fire her.
“References to impartiality and the like (are) unhelpful to the ABC. They’re in fact self defeating, because they point (to) the fact that it is the opinion that is the issue,” he said.
“Mr Anderson, at one point, refers to a threat to the organisation’s reputation and a threat to its need to appear impartial … this is a remarkably facile mode of analysis for a series of very senior executives in a broadcaster.
“(They are) suggesting that Ms Lattouf is an activist or an advocate, and the label is not applied to Ms Tingle, Ms Karvelas.
“One might expect a bit more nuance.”
Mr Fagir said ABC staff unfairly branded Lattouf as a professional liability who would leave the broadcaster prone to controversy, based on nothing but listener complaints
“This stereotyped assumption … (is that) Lattouf is a person who, because she held a particular opinion, was apt to disregard her professional obligations and do something … damaging,” he said.
“One finds neither in the contemporaneous evidence, nor what we would describe as the engineered narrative in the affidavits, any real support for that.”
Mr Fagir said Mr Anderson accepted the dismissal “was abnormal from start to finish”.
“When Your Honour comes to the ABC’s submissions, you will see repeatedly references or assertions to the effect that the managing director wouldn’t normally second guess a decision to remove a casual employee, or the chair of the board wouldn’t be involved in the removal of a five-day casual,” he said.
“That might well be right in the ordinary case. This is not the ordinary case, and to say that it would not be typical for the managing director to question a decision takes the matter nowhere.”
Lattouf given ‘no direction’ on social media use
Mr Fagir criticised the decisions of Mr Anderson and Mr Oliver-Taylor, saying they “knew that no direction had been given to Ms Lattouf not to post anything controversial about the Israeli-Gaza conflict”.
“The case is on one level, factually dense. But on another level, it might be thought to be factually straightforward, and it may be useful at the outset to take a step back from the detail and consider some of the basic and uncontroversial facts,” Mr Fagir said.
“An employee, Ms Lattouf, is hired to present – for a week – a light, bright morning radio program. As soon as she appears on air, she is the subject of a lobbying campaign, the purpose of which is to remove her from air. The campaign has nothing … to do with her work, and everything to do with her opinions on the subject matter of Israel and Gaza.
“The managing director (Mr Anderson) refers to Ms Lattouf’s views – as expressed on her social media – as racist hatred. He says, quite openly, unabashedly, including in these proceedings, that she ought never have been hired.
“There is for a time, a decision not to remove her, not because her work has been exemplary, not because she has done nothing wrong, not because she has not breached any policy, but because the blowback will be phenomenal.
“This is what I described in opening as the purely pragmatic reason that Miss Lattouf was not removed from air.”
Mr Fagir argued the ABC failed to instruct Lattouf not to post social media material that could be deemed controversial, and that the key executives involved in firing her were fully aware they had given no such direction.
“There seems to be no evidence, or meagre evidence, of Mr Oliver-Taylor ever giving an instruction at the highest level,” he said.
“The fact that no one had ever confirmed to him the direction had been given didn’t cause him to doubt (the ABC’s conduct).”
What’s expected
Over Thursday and Friday, lawyers for the ABC will seek to prove it did not unlawfully terminate Lattouf’s five-day contract as a fill-in presenter on ABC Radio Sydney in late 2023 prematurely in response to a concerted WhatsApp campaign by pro-Israel lobbyists.
Ms Lattouf’s barristers Philip Boncardo and Mr Fagir have cross-examined a stable of ABC executives who have all either left the company or announced their departure since she was ousted for reposting social media material on the Israel-Gaza conflict – with the final straw being an Instagram post from Human Rights Watch alongside the caption: “HRW reporting starvation as a tool of war”.
On Monday – more than a week after Mr Anderson, Mr Oliver-Taylor and Ms Buttrose left the stand – a letter by Ms Buttrose to ABC’s legal firm called into question the accuracy of Mr Anderson’s testimony.
The letter disputed the veracity of two conversations Mr Anderson recounted during proceedings in which he and Ms Buttrose allegedly discussed Ms Lattouf and whether she could be managed out of her role.
It exposed further tensions within the ABC’s administration, after the Federal Court trial saw internal emails tabled in which Ms Buttrose claimed the public broadcaster “owe(s) (Lattouf) nothing” suggesting she should “come down with flu or Covid” in order to get off the air.
Ms Lattouf’s representation also questioned the “activism” of tentpole ABC presenters such as former Media Watch host Paul Barry and 7.30 chief political correspondent Laura Tingle.
Ms Buttrose has emphatically and repeatedly denied she caved to a co-ordinated campaign of complaints and said firing a presenter was outside her powers.
This was despite Mr Oliver-Taylor saying he was put under a “great deal of pressure” by Ms Buttrose and allegedly received texts from Mr Anderson saying they had an “Antoinette problem” because her social media was filled with “anti-Semitic hatred”.
In June last year the Fair Work Commission found Ms Lattouf had been sacked by the ABC, despite it arguing her early dismissal did not constitute a firing because she was paid out for the entirety of her five-day contract. This decision paved her way for a case in the Federal Court.
Mr Boncardo sought to reinforce this finding, arguing an article by The Australian stating Ms Lattouf was fired - a fact the ABC did not contradict - evidenced her time at the public broadcaster was over.
“(An article by The Australian was) published on the internet before my client (got) home, saying she’d been sacked. And what does the ABC do in response? Absolutely nothing. (It) does not write to be my client and say, “No, you want you aren’t sacked. You remain employed”,” Mr Boncardo said.
Lattouf “benefited” from dismissal
The ABC has argued the growth of Ms Lattouf’s social media following since her alleged unlawful dismissal meant she benefited from the abrupt end of her contract, with closing statements beginning.
The public broadcaster’s barrister Ian Neil SC sought to table evidence comparing Ms Lattouf’s Instagram following between December 2023 and now as an indication of how her fortunes as a freelancer were buoyed by the public fallout of her sacking.
Mr Fagir argued it was irrelevant evidence, saying she had not been cross-examined over whether her firing gave her a broader audience.
“It appears to be suggested that (the evidence) might be relevant to the proposition that Ms Lattouf in some way benefited from her dismissal by the ABC, or her removal from air,” Mr Fagir said.
“There was a debate about this in the context of an objection to questions put during Ms Lattouf’s cross-examination … it was suggested that the ABC would make some contention of that kind. So far as we can tell, no such proposition was ever put to Ms Lattouf.
“In that context, it is not open to the ABC to make any such submission.”
Justice Rangiah agreed it was irrelevant. He went on to chide both parties for failing to submit a joint list of agreed facts, saying it set back his progress on providing a judgment to the “factually dense” case.
Mr Fagir argued the ABC had been “selective” and not given a “neutral chronology” when putting together the narrative of facts.
On Friday the ABC will provide its closing argument before the trial concludes and Justice Rangiah retires to consider his decision.
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