The ABC should be fined up to $350,000 for sacking the presenter Antoinette Lattouf because of “significant pressure” put on senior management by Ita Buttrose, the broadcaster’s former chair, the federal court has heard.
The ABC, which admits it acted unlawfully, has submitted the total penalty imposed should be between $37,560 and $56,340.
In June the court found the ABC contravened section 772 of the Fair Work Act by terminating Lattouf for reasons of political opinion and breached five clauses of the ABC’s enterprise agreement by removing her from air three days into a five-day contract.
The court ordered that the ABC pay Lattouf compensation of $70,000.
On Wednesday, Justice Darryl Rangiah heard submissions from Lattouf and the ABC on what the scale of a separate penalty should be for the breaches of employment law.
The court heard Buttrose sent six emails in rapid succession detailing complaints about Lattouf to the broadcaster’s content chief, Chris Oliver-Taylor, in the hours leading up to her sacking.
One of Lattouf’s barristers, Philip Boncardo, asked the court to find the breach of the law was not a “mistake” by Oliver-Taylor, as has been claimed by the ABC.
“We would also contend that your honour would take into account the involvement of Ms Buttrose as someone who placed significant pressure on Oliver-Taylor in the contravening,” Boncardo said.
“How Mr Oliver-Taylor could have been mistaken about whether or not it was lawful to sack someone because of their opinion escapes us.”
The ABC submitted the breach was “one-off” and not a “deliberate recalcitrance” and a reduced penalty was in order.
Oliver-Taylor left the broadcaster in January after his role was substantially downgraded by the ABC chair, Kim Williams.
The broadcaster asked the court to take into consideration the finding by Rangiah that Lattouf’s conduct in making the Human Rights Watch post was “ill advised and inconsiderate of her employer”.
Lattouf was removed from the ABC Mornings program after she shared an Instagram post from Human Rights Watch that said Israel had used starvation as a “weapon of war” in Gaza.
The ABC submitted Oliver-Taylor was acting to protect the broadcaster’s reputation and to maintain the ABC’s “impartiality and appearance of impartiality in the context of Ms Lattouf’s posts about the Israel/Gaza war”.
The ABC says Oliver-Taylor acted in haste to “beat a story” that was about to be published by the Australian, and did not consult the ABC’s human resources department or its legal team.
Lattouf’s submission is that the ABC has not exhibited sufficient contrition and has not taken significant corrective action.
The ABC’s barristers, Ian Neil, SC, and Vanja Bulut, told the court their client has taken extensive steps to ensure that the contravening conduct does not recur and the senior leadership team has been trained to follow legal obligations.
Neil said the circumstances in which Oliver-Taylor, the “single decision maker”, was operating were “unique and extraordinary, a perfect storm” and were unlikely to happen again.
“All came together at one very specific, short period of time and produced a circumstance where the single decision maker was operating under what we have characterised as human emotions – pressure, stress, confusion, panic,” Neil said.
Under cross-examination, the ABC’s chief people officer Deena Amorelli agreed no one from the ABC had contacted Lattouf to apologise personally despite acknowledging the “distress occasioned her” in a statement published after the judgment was handed down.
Lattouf submitted the ABC exhibited a “callous indifference” to her welfare and has failed to explain who leaked news of her termination to The Australian.
“The ABC’s contravening conduct and actions in the immediate aftermath of Ms Lattouf’s termination evidence a disturbing culture where the prejudices of lobby groups prevail over the welfare of employees and compliance with the ABC’s legal obligations,” the submission released by the court said. “The ABC’s objectively grave contravening calls for substantial deterrent penalties.”
Rangiah has reserved his decision.
