Antoinette Lattouf asks for ABC to be slugged $350k

Antoinette Lattouf’s legal team has asked for the ABC to be slugged with a penalty of up to $350,000 and for it to be paid to her, after the journalist was unlawfully sacked by the national broadcaster. Ms Lattouf earlier this year won her high-profile Federal Court lawsuit against the ABC after Justice Darryl Rangiah found that it breached the Fair Work Act by telling her she was not required for the last two days of a five-day casual stint on ABC Radio Sydney in December 2023. The ABC has argued that its decision to sack Ms Lattouf was a “one off” and the result of a “perfect storm”. The broadcaster was previously ordered to pay $70,000 compensation to Ms Lattouf; however, it is facing further penalties. The two parties returned to court on Wednesday for a hearing to determine how much the ABC will pay in penalties for breaching the Fair Work Act. Ms Lattouf has asked for the ABC to be penalised between $300,000 to $350,000, while the ABC says a penalty of between $37,000 and $56,000 is appropriate. The court adjourned late on Wednesday afternoon and Justice Rangiah will make his judgment at a later date. ‘UNDER THE BUS’ Ms Lattouf said that she was not confident that the ABC would not make similar breaches in the future and that she was still waiting for someone from the broadcaster to make contact with her. “Justice Rangiah described it well when he said that the ABC threw me under the bus,” Ms Lattouf said outside court on Wednesday afternoon. “The fact that the ABC hasn’t apologised personally, or directly to me. They haven’t investigated internally who leaked to The Australian, there hasn’t been any policy changes for the board or management, all that’s happened is that they’ve unveiled a … more draconian social media policy for staff which could impinge on their civil liberties. “And that they think their penalty should be as little as $36,000 doesn’t give me a huge amount of confidence that this won’t happen again.” She said she still had not received a phone call from anyone at the ABC to apologise. “There are a myriad of ways to contact me,” Ms Lattouf said. “MODEST PENALTY” ABC barrister Ian Neil SC told the court on Wednesday that the decision to sack Ms Lattouf was the result of “extenuating circumstances” and a “modest” penalty was appropriate. He argued the incident was “unlikely ever to be repeated.” Mr Neil said that the decision to unlawfully sack Ms Lattouf was the result of several factors which would not be repeated. That included the “febrile state” of the community about the war in Gaza, Ms Lattouf making the Human Rights Watch post to Instagram, the stream of complaints which were made to the ABC and that The Australian was asking questions. “All came together at one very specific, short period of time and produced a circumstances where the single decision maker was operating under what we have characterised as human emotions - pressure, stress, confusion, panic,” Mr Neil said. During the trial earlier this year, the court heard that former ABC chair Ita Buttrose fired off an email to managing editor David Anderson on Tuesday, December 19. “Has Antoinette been replaced. I am over getting emails about her,” Ms Buttrose said in the email. Justice Rangiah told the court on Wednesday: “Part of the pressure and stress was the pressure that operated as a result of the communications from Ms Buttrose and Mr Anderson.” Mr Neil argued that neither Ms Buttrose nor Mr Anderson asked for Ms Lattouf to be sacked. A PERFECT STORM The ABC has argued that its decision to sack Ms Lattouf was a “one off” and the result of a “perfect storm”. The decision to sack Ms Lattouf was made by then head of content Chris Oliver-Taylor following a teams meeting involving members of ABC management on Wednesday, December 20, 2023, the court was previously told. In its written submissions to the court, the ABC argued that “the circumstances that Mr Oliver-Taylor had to deal with … caused him to act without careful consideration.” They described the decision to take her off air as “hasty”. “There is no sensible possibility that the ABC or any other employer will ever again be presented with the perfect storm that confronted Mr Oliver-Taylor,” the ABC wrote in its submissions. “The context in which the contraventions occurred was extraordinary and unique, and the contravening conduct that resulted was a true ‘one off’.” DROP IN THE OCEAN Ms Lattouf has asked that any penalties be paid to her. “There is no reason to depart from the usual position … that the penalties levied be paid to the applicant,” Ms Lattouf’s lawyers said in their written submissions. Ms Lattouf’s barrister Philip Boncardo on Wednesday told the court that the ABC’s proposed penalty – of between $37,560 and $56,340 – was a “drop in the ocean”. He said that court needed to send a message to dissuade big corporations from breaching the law. “When one looks at the overall revenue of the ABC and its assets and resources, the penalties of the kind that the ABC is proposing … are manifestly inadequate to achieve specific deterrence,” Mr Boncardo said. “They are but a drop in the ocean given the size of the ABC.” ‘EXTRAORDINARY AND ALARMING’ In their written submissions to the court, Ms Lattouf’s barristers Oshie Fagir and Mr Boncardo argued that the ABC was guilty of six contraventions of the Fair Work Act and therefore the maximum penalty available was $563,400. They argue that she was sacked “in a craven placation of pro-Israeli lobbyists.” “Its unlawful conduct struck at the heart of the anti-discrimination protection effected by (the Fair Work Act) and was antithetical to the fundamental democratic principles, including freedom of speech, which it purports to espouse,” her legal team wrote in its written submissions published by the court on Wednesday. They further described the ABC’s conduct as “extraordinary and alarming”. The court has previously heard that on December 20, a journalist from The Australian asked questions of the national broadcaster. “The implementation of Ms Lattouf’s termination was pitiless,” Ms Lattouf’s lawyers said. “The ABC blithely ignored important procedural and substantive protections in the Agreement. “These were cast aside by senior executives and managers in a panicked rush to ‘beat the story’ that The Australian was going to publish and to appease the pro-Israeli lobbyists.” Her legal team has also pointed out details of her sacking were leaked to The Australian before she had arrived home. They argue the incident was an example of a “disturbing culture” and called for “substantial deterrent penalties”. FIGHT OVER PENALTY In its written submissions, the ABC said it apologised to Ms Lattouf and the Australian public. Both parties agree that the maximum penalty for each contravention of the Fair Work Act was $93,900. And while Ms Lattouf argues there were six contraventions, the ABC says they should only be penalised for two. “The ABC has apologised to Ms Lattouf, as well as its employees more widely, and to the court, for the contravening conduct,” the ABC said in its written submissions. “The ABC has expressed sincere regret that Ms Lattouf’s employment was terminated because of the contravening conduct, and has publicly acknowledged that Ms Lattouf has suffered distress because of the ABC’s failings and the effects of the contravening conduct.” It said it had provided training to its board and senior leadership team. The slideshow from the one-hour presentation was published by the Federal Court on Wednesday. THE PENALTY In its written submissions to the court, Ms Lattouf’s lawyers argued that the ABC should be fined a six-figure sum. “Specific and general deterrence call for aggregate penalties in the order of $300,000-350,000 to be imposed on the ABC,” her lawyers wrote in their written submissions published by the court. In court on Friday, barrister Oshie Fagir highlighted the broadcaster’s $1bn a year budget. The ABC said in its submission that it should only be fined tens of thousands of dollars. “For the reasons set out in these submissions, (the ABC) respectfully submits that the total penalty to be imposed on the ABC should be between $37,560 and $56,340, which is 20 per cent to 30 per cent of the correctly calculated maximum penalty,” the ABC’s lawyers wrote.” ‘PERFORMATIVE’ Mr Fagir on Wednesday took aim at the ABC, saying its expressions of regret were “performative”. Mr Fagir asked the ABC’s chief people officer Deena Amorelli: “I want to suggest to you that the expressions of regret etc which appear in your affidavit are performative.” “No, I don’t agree with that at all,” Ms Amorelli replied. Mr Fagir: “And they’re simply another manifestation of the ABC’s approach, which is that it could do whatever best promotes its forensic interests at a particular point in the litigation.” Ms Amorelli: “No, I don’t agree with that at all.” She added that Justice Rangiah’s judgment had “reverberated throughout the organisation”. TRAINING Ms Amorelli was further asked about remedial action taken by the ABC after it was found it had breached the Fair Work Act. She said that a one-hour training session was delivered to the ABC’s board and executive leadership team, which is composed of about 100 people who report to the managing director. The session was offered on several occasions so that anyone who missed a previous session could attend. Mr Fagir: “Was there in fact other training?” Ms Amorelli: “No.” $1BN BUDGET Mr Fagir has taken aim at the suggested penalty put forward by the ABC in light of its billion-dollar annual budget. “Ms Amorelli, the ABC’s budget is about $1bn a year, is that right?,” Mr Fagir on Wednesday morning asked Ms Amorelli in cross-examination. Ms Amorelli: “Yes.” Mr Fagir: “The penalty which the ABC considers appropriate represents about 0.00375 per cent of that budget, is that right?” It prompted the ABC barrister Ian Neil SC to object, noting that the broadcaster’s submissions had been handed to the court. “Yes Mr Fagir, it just seems to me that this cross-examination so far has been a waste of time. Is there anything else you want to ask?” Justice Rangiah said. NO CONTACT No one from the ABC has contacted Ms Lattouf since Justice Rangiah’s judgment on June 25, the court was told on Wednesday. Following the ABC’s loss, managing director Hugh Marks issued a statement in which he expressed his regret “how the decision to remove Ms Lattouf from air was handled and the distress occasioned her”. Ms Amorelli told the court that no one from the ABC had personally contacted the journalist. ‘HUNDREDS OF THOUSANDS’ In a social media post, Ms Lattouf said her lawyers would on Wednesday argue the ABC should pay “hundreds of thousands of dollars” in penalties. “A penalty hearing isn’t just a punishment – it’s deterrence,” Ms Lattouf wrote to X. “Without deterrence, a penalty is just words on paper.” Ms Lattouf further claimed that the ABC will argue for a penalty of between $37,000 and $56,000. AXED Ms Lattouf sued the ABC in the Federal Court after she was sent home for the final two days of a stint on ABC Radio’s Sydney Mornings program in the lead-up to Christmas in 2023. Ms Lattouf was called up as a fill-in host for five shifts starting on Monday, December 18 but was told not to come in for the final two shows. She had argued she was unlawfully dismissed after sharing a post on social media by Human Rights Watch reading: “HRW reporting starvation as a tool of war. The Israeli government is using starvation of civilians as a weapon of war in Gaza.” She said that she was sacked after sharing the post and as a result of a flurry of emails from pro-Israel supporters to ABC management. The ABC had argued Ms Lattouf’s employment was not terminated when she was told that she was not required to appear on air for the rest of the week. However, that argument was rejected by the court. Justice Rangiah found that when Ms Lattouf was told she was not required for her final two shifts, it was a “euphemistic way” of telling her that she was being taken off air. The court was told the decision to axe Ms Lattouf came after the ABC received a host of complaints about her pro-Palestinian politics over the preceding days.