Antoinette Lattouf v ABC as it happened: Closing submissions begin in Federal Court unlawful termination case

If you’re just joining us now, journalist and presenter Antoinette Lattouf’s unlawful termination case against the ABC is entering its final days.

Today, Lattouf’s barristers, Oshie Fagir and Philip Boncardo, have delivered closing submissions to the court.

• Fagir submitted that four ABC executives were involved in the decision to axe Lattouf on ABC Sydney Radio in December 2023, three days into a planned five-day stint. Those four executives were: then-ABC chair Ita Buttrose, managing director David Anderson, chief content officer Chris Oliver-Taylor and head of audio Ben Latimer.
• While Oliver-Taylor is the executive who made the call to remove Lattouf from radio, Fagir said Anderson had a “right of veto” and did not exercise it. He alleged Buttrose and Latimer both influenced the decision rather than being direct decision makers.
• Fagir said Buttrose brought pressure to bear on Anderson and Oliver-Taylor.
• Lattouf 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, Arab and Middle Eastern descent.
• The ABC says her employment was not terminated.
• Boncardo said Lattouf was “told to leave” and perform no further work “at all” and was not told that she would be paid for her remaining shifts. “That, we say, is a clear example of a termination of the employment relationship.”

Thank you for reading our live coverage of the hearing today. Court resumes tomorrow at 9.45am (AEDT).

You can read my wrap of today’s hearing here.

The court has heard that The Australian newspaper had put questions to the ABC about Antoinette Lattouf and her views on the Israel-Gaza war shortly before the decision was made to take her off-air in December 2023.

It published a story at 2.39pm on December 20, asserting she had been “sacked”, although the ABC maintains that she was not.

At the end of today’s hearing, Justice Darryl Rangiah tells one of Lattouf’s barristers, Philip Boncardo: “I’m going to be asking Mr [Ian] Neil [SC, acting for the ABC] tomorrow about the relevance of the apparent leaking of the information concerning Ms Lattouf’s case to The Australian and whether that factors into questions of compensation.

“I raise that simply because you may wish to consider that.”

The hearing has concluded for today and will resume at the earlier hour of 9.45am tomorrow.

Barrister Philip Boncardo, acting for Antoinette Lattouf, is now taking the court to the ABC’s enterprise agreement.

He says it “defies reality” for the ABC to say no allegation of misconduct was made against Lattouf, and the ABC did not act in accordance with the provisions of the enterprise agreement relating to misconduct allegations.

Antoinette Lattouf outside the Federal Court in Sydney on February 12.Credit: Kate Geraghty

The enterprise agreement says that where an allegation of misconduct is made, the employee will be “advised in writing of the nature of the alleged misconduct” and “advised that at any stage during these or subsequent proceedings they may choose to be accompanied or represented by a person of their choice”.

An employee’s employment can be terminated “summarily, if the employee is guilty of serious misconduct”.

Taking Lattouf off-air was “plainly a sanction”, Boncardo submits, and the enterprise agreement’s processes were not followed.

He adds that the fact that the ABC ultimately paid Lattouf for all five days of her contract is irrelevant to whether it repudiated that contract.

Barrister Philip Boncardo, who is also acting for Antoinette Lattouf, is now on his feet and is addressing the court on the question of whether Lattouf’s employment was terminated.

This is a pivotal issue in her unlawful termination claim, because the ABC says her employment was not terminated.

Antoinette Lattouf and her barrister Philip Boncardo outside the Federal Court in Sydney this month.Credit: Kate Geraghty

Boncardo said Lattouf was “told to leave” on December 20, 2023, three days into her planned five-day stint on ABC Radio Sydney.

She was told to perform no further work “at all”, and was not told that she would be paid for her remaining shifts.

“That, we say, is a clear example of a termination of the employment relationship.”

An article was published by The Australian before Lattouf got home that day, asserting that she had been sacked. The ABC did not move to correct that report, Boncardo said.

Antoinette Lattouf’s barrister, Oshie Fagir, submits that the then ABC chair, Ita Buttrose, brought “pressure” to bear on the broadcaster’s managing director, David Anderson, and its chief content officer, Chris Oliver-Taylor.

This included by emailing both of them, he said. Fagir told the court that Buttrose’s “conduct had a material effect on the ultimate outcome”.

Former ABC chair Ita Buttrose leaves the Federal Court after giving evidence.Credit: James Brickwood

“Ms Buttrose’s attitude never wavered at any point,” he said.

Buttrose has denied influencing the decision to remove Lattouf from ABC Sydney Radio in December 2023.

Antoinette Lattouf’s barrister, Oshie Fagir, says during his submissions that ABC managing director David Anderson was one of four executives who had a hand in Lattouf’s sacking because he did not exercise a “right of veto”.

Fagir alleged in court earlier today that Anderson and the broadcaster’s then-chair, Ita Buttrose, were both involved in the decision to dismiss Lattouf, as were the ABC’s chief content officer, Chris Oliver-Taylor, and its head of audio content, Ben Latimer. But the levels of involvement of each person differed.

ABC managing director David Anderson (right) leaving the Federal Court in Sydney this month.Credit: Kate Geraghty

“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,” Fagir said.

Fagir submitted that Anderson was a decision maker because he had a “right of veto” over Oliver-Taylor’s call to remove Lattouf on December 20, 2023, but he did not exercise it.

The ABC maintains Lattouf was not sacked. It says she was simply not required to work the final two shifts of a five-day contract.

Antoinette Lattouf’s barrister, Oshie Fagir, is back on his feet delivering closing submissions after the lunch break.

He returns to the question posed by Justice Darryl Rangiah before the break about the difference between having a political opinion and expressing it publicly, and whether an employer might lawfully dismiss an employee for doing the latter.

Fagir replies that an opinion exists only to the extent it is expressed or manifested in some way, and that there is no difference in this case.

This is relevant in the Lattouf case because the freelance journalist alleges she was sacked in part because of her political opinion, in contravention of the Fair Work Act.

Justice Darryl Rangiah raises a question about the difference between being sacked for holding a political opinion, or being sacked for expressing that opinion publicly.

Under the Fair Work Act, an employer may not take adverse action against an employee because of their political opinion.

Antoinette Lattouf 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, Arab and Middle Eastern descent.

Rangiah raises a hypothetical scenario about a cafe owner who does not object to an employee who supports the Greens party, but does object to them putting a Greens sign in the shop.

Lattouf’s barrister Oshie Fagir said that, in the context of the Lattouf case, “as we would see it, dismissal because of expression of opinion is dismissal because of that opinion”.

“The expression of the opinion is simply a manifestation of the opinion,” Fagir said.

The ABC maintains Lattouf was not sacked and her contract came to an end naturally at the end of the five-day term, although she did not have to work two of her five shifts on ABC Radio Sydney.

Antoinette Lattouf’s barrister, Oshie Fagir, takes aim at the use of the words “advocate” and “activist” to describe the freelance journalist.

The former ABC chair, Ita Buttrose, referred to Lattouf as an activist on the Israel-Gaza war during her evidence in court this month.

Fagir said that prominent ABC employees including Laura Tingle and Patricia Karvelas had expressed views, including on social media, and had not been labelled activists.

Antoinette Lattouf with barrister Oshie Fagir outside court this month.Credit: Kate Geraghty

He submitted that the use of the word activist “involves a judgment on the relative merits of the opinions” being expressed by the individual, and it betrayed “a priori hostility to the opinions she holds”.

Justice Darryl Rangiah expressed reservations about this line of argument. He responded that this case involved a “very particular, if not unique, set of circumstances” and said that comparisons with other presenters’ comments on social media “may not be particularly helpful”.

Antoinette Lattouf’s barrister, Oshie Fagir, says in his closing submissions to the court that if the evidence of Lattouf’s line manager is accepted by Federal Court Justice Darryl Rangiah it is “game over for the ABC”.

Elizabeth Green, now executive producer of ABC Radio Sydney’s Drive program, gave evidence in court earlier this month about her dealings with Lattouf before and after the journalist was abruptly removed as fill-in host of the Sydney Mornings radio program in 2023.

Elizabeth Green, in black, outside the Federal Court in Sydney on February 12.Credit: Kate Geraghty

At the time of Lattouf’s removal from the airwaves, Green was ABC Radio Sydney’s content director and Lattouf’s line manager.

On December 19, 2023, a day before her removal, Lattouf shared a post critical of Israel from non-governmental organisation Human Rights Watch on Instagram. She added the caption: “HRW reporting starvation as a tool of war.”

One of Lattouf’s barristers, Philip Boncardo, put to Green during her evidence that she “expressed the view that you did not see anything wrong with Ms Lattouf’s post” during an internal meeting on December 20, 2023.

“I did say that,” Green said.

Green agreed she told Lattouf she had “tried to stop them” and “tried hard to keep” her.

Fagir has submitted that Green’s evidence, if accepted, shows that Lattouf was not given an explicit direction not to post at all on social media about the Israel-Gaza war during her planned five-day stint on ABC radio.

It was “always clear that the post was not inconsistent with what she had asked Ms Lattouf to do”, Fagir said.