Journalist Antoinette Lattouf’s unfair dismissal case against the ABC resumed in Sydney’s Federal Court on Friday.
The ABC’s barrister Ian Neil SC delivered his closing arguments, while the court also heard final submissions from Ms Lattouf’s legal team including her barrister Oshie Fagir.
The proceedings, being heard by Justice Darryl Rangiah, will commence at 9.45am and mark what is likely to be the last hearing before the judge adjourns the case to consider his decision.
Race not a factor in Lattouf’s dismissal: ABC barrister
Ms Lattouf’s race did not play a part in her termination at the ABC three days into her radio gig, the barrister representing the national broadcaster has told the court.
The journalist had alleged in her statement of claim that her political opinion, and her race as a woman of Lebanese heritage, were the reasons for her dismissal.
Ms Lattouf’s barrister a day earlier submitted race was a factor that led to the departure.
Mr Neil on Friday argued that was not the case.
“We have made the point that Latouff’s case has been unable to point to any evidence consistent with the hypothesis that race or national extraction was a factor that bore in any way on the decision that she required not to present (on radio),” he told the court.
Pressed by Judge Rangiah on Thursday about which evidence Mr Fagir was relying on, the barrister told the court it was on the onus of the ABC to prove otherwise.
Wording being put under the microscope
ABC’s barrister has argued there was no difference between the words “advice” and “direction” as the closing arguments focus on the posting to social media.
The court heard on Friday about a meeting between Ms Lattouf’s boss Elizabeth Green and three members of ABC’s management team regarding the journalist.
The meeting was called to discuss Ms Lattouf and her Instagram posts.
Ms Green in her affidavit said in the meeting she told the management she “had not given any directive to Ms Lattouf” and had “advised her against posting to social media”.
ABC’s barrister on Friday argued there was no difference.
Mr Neil also added it was important to note no one in the meeting could recall Ms Green making those remarks and questioned the “recollection” of Ms Lattouf’s boss.
Allegation ABC decision-maker ‘knew no direction was given’ is ‘outlandish’: Neil
An allegation from Ms Lattouf’s legal team that a key decision-maker at the ABC “knew no direction was given” on posting to social media has been labelled “outlandish”.
A large part of the case on Thursday centred on if Ms Lattouf disobeyed a direction from ABC management to not post on social media in relation to the Israel-Gaza war.
Mr Fagir argued no clear direction was ever given to Ms Lattouf to not post about the conflict in the Middle East during her contract at the national broadcaster.
“It is pellucidly clear, in my respectful submission, that no direction was given. It is clear that the relevant decision maker, or at least Mr (Chris) Oliver-Taylor, and those advising him, knew that no direction was given,” Mr Fagir said on Thursday.
Mr Neil on Friday described the allegation as an “outlandish proposition”.
‘Real reason’ Lattouf’s contract was terminated: ABC barrister
Ms Lattouf’s contract with the ABC was terminated “because she did something she was told not to do”, ABC’s barrister has told the court.
Justice Rangiah on Friday asked Mr Neil if he accepted Ms Lattouf was taken off the radio airwaves after three of five stints for the expression of a political opinion.
“No. She was taken off air because she did something she was told not to do. That was the real reason,” Mr Neil told Sydney’s Federal Court.
“She was told, in affect, not to post anything in relation to the conflict in Israel and Gaza during the week she was with the ABC.”
Justice Rangiah then pointed to Elizabeth Green, ABC Radio Sydney’s content director at the time, who gave evidence recalling how she spoke to Ms Lattouf saying it was “best not to post anything that would be considered controversial while you’re with us”, but if “something is fact based and from a verified source, I am sure it would be fine”.
Mr Neil then pointed to evidence from Ms Lattouf who told the court previously about her conversation with Ms Green: “I responded by saying, ‘I don’t think it’s fair to expect me to stop posting altogether, but I will be even more mindful’.”
“Now that’s a clear indication on Ms Lattouf’s side the starting point of the discussion between her and Ms Green was stop posting altogether,” he said on Friday.
Ms Lattouf also previously told the court she could reshare material which stuck to the “facts” and were from “reputable” sources.
ABC managing director ‘may have misread’ Lattouf social post
David Anderson, the managing director of the public broadcaster, “may have misread” Ms Lattouf’s Instagram posts, ABC’s barrister has told the court.
Ms Lattouf had finished her first on-air shift on December 18, 2023, when Mr Anderson sent a text message to the broadcaster’s chief content officer Chris Oliver-Taylor.
Mr Anderson had gone through Ms Lattouf social media posts and flagged to Mr Oliver-Taylor about “an Antoinette issue”.
“Her socials are full of antSemitic (sic) hatred. I’ll send you a link. I’m not sure we can have someone on air that suggests that Hamas should return to their ethnic cleansing in Gaza and move onto the West Bank,” the managing director’s message read.
Federal Court Justice Darryl Rangiah on Friday said Ms Lattouf was “sarcastically suggesting Israel should do that” while responding to comments on Instagram.
Mr Neil then conceded Mr Anderson may have “misread” or “failed to understand its full context” but it was “never his final position”.
He told the court Mr Anderson was “concerned” about Ms Lattouf’s past social media activity and had “associated herself with one perspective” of the Israel-Hamas conflict.
“It did not matter which one it was to him (Mr Anderson). It was her conduct in associating herself by her expressions… in her social media activity,” he said.
“That was his exclusive concern.”
ABC barrister says case ‘not an unfair dismissal case’
ABC’s lawyer has told the court the Ms Lattouf’s case was not about “unfair dismissal”.
In his opening remarks on the final day of closing arguments on Friday, Ian Neil SC, “emphasised” the “three things” the case was not about.
“One is this, it’s not a case about discrimination. It’s not a case about differential treatment. It’s not a case about bespoke directions,” Mr Neil said.
“Second it’s not a case about impartiality.
“And the third thing is it’s not an unfair dismissal case. It’s not a case about the fairness of anything that was done in relation to the applicant, to Ms Lattouf.”
Ms Lattouf has alleged during proceedings her contract was unfairly terminated, which the ABC has denied, over a Human Rights Watch (HRW) post on the war in Gaza which had the caption: “HRW reporting starvation as a tool of war”.
“The contents of that story were an incontrovertible fact, not of opinion at all,” Mr Neil said on Friday.
What we know about the case
Ms Lattouf briefly worked as a fill-in radio host on the ABC Radio Sydney Mornings show in December 2023.
The journalist launched legal action against the broadcaster last year, claiming her employment was unfairly terminated just three days into her five-day contract.
The court has heard Ms Lattouf was dismissed from the ABC after sharing a post on Instagram by Human Rights Watch (HRW) about the war in Gaza on December 19, 2023, which read “HRW reporting starvation as a tool of war”.
Ms Lattouf claims she told in a meeting a day later with ABC management that she had breached the public broadcaster’s polices regarding personal use of social media.
The court has heard evidence from various former and current ABC executives, including ex-chair Ita Buttrose and outgoing managing director David Anderson.
The ABC – which confirmed in Senate Estimates this week it had spent $1.1 million on external legal fees in defending the case – denies Ms Lattouf’s contract was unlawfully terminated.
Court urged to consider Lattouf’s political opinion, race as reasons for dismissal
In her statement of claim, Ms Lattouf alleges her political opinion regarding the Israel-Gaza war and Lebanese, Middle Eastern and Arab background both played a part in the ABC’s decision to take her off air.
Her barrister gave further submissions on those claims during his closing arguments on Thursday.
“Can I just make it clear that the case remains, as it always has been, that Ms Lattouf was dismissed for reasons which include her opinions, and further, and in the alternative, reasons which included her opinions and her race,” Mr Fagir said.
“This is a conclusion that we would urge the court to reach – one of the reasons Ms Lattouf was removed from air in the circumstances… was not only that she held and manifested particular views, but that she did so in circumstances where she was herself of Lebanese heritage.”
A large part of the case has also centred on whether Ms Lattouf disobeyed a direction from ABC management to not post on social media about the Israel-Gaza war during her contract.
Ms Lattouf denies she was given a clear direction to not post on social media.
