Antoinette Lattouf case: Closing submissions heard in unlawful termination suit against ABC — as it happened

The Federal Court has wrapped up for the day and will return tomorrow which means this is where we leave out live coverage.

Here’s the main points from the second half of the hearing:

• Ms Lattouf’s legal team argued that there is no difference between holding a political opinion or expressing a political opinion 
• They argued that the presenter was also taken off air in December 2023 because of her race 
• Her lawyers said former ABC chair Ita Buttrose and outgoing ABC managing director David Anderson pressured former chief content officer Chris Oliver-Taylor to terminate Lattouf
• Lattouf’s legal team argued the ABC did not follow its enterprise agreement when they terminated her

You can look back on today’s developments below, or download the ABC News app and subscribe to our range of news alerts for the latest updates.

Mr Boncardo has submitted that the ABC did not follow its enterprise agreement when they terminated Ms Lattouf.

He says it “defies reality” that there was no allegation of misconduct against Ms Lattouf.

Section 55.6.1 of the ABC’s enterprise agreement says that an employee can be dismissed “summarily” for “serious misconduct” after the organisation has formed the view misconduct has occurred.

“There was a complete failure in our respectful submission for the ABC to comply with its obligations under the enterprise agreement,” Mr Boncardo said.

Lattouf’s lawyer Philip Boncardo is arguing his client was terminated from the ABC.

He says Ms Lattouf was told to pack up her belongings, leave and not perform further work on December 20, 2023.

“There is no ongoing employment contract in our respectful submission,” Mr Boncardo says.

Mr Fagir has told the court that pressure applied by outgoing ABC managing director David Anderson and former ABC chair Ita Buttrose ultimately led to Ms Lattouf’s termination.

He says Mr Anderson’s “conduct and communications” with former chief content officer Chris Oliver-Taylor placed pressure on him to terminate Ms Lattouf.

“His view that Ms Lattouf should never have been hired, and his deep unhappiness about the position he thought the ABC was in were all influential and were all aspects of the influence, the pressure that was brought to bear on Mr Oliver-Taylor and which were relevant to his ultimate decision,” Mr Fagir says.

Mr Fagir says Ms Buttrose applied “pressure” on both Mr Anderson and Mr Oliver-Taylor to remove Ms Lattouf part way through her stint with ABC Radio Sydney.

Under cross-examination, Mr Oliver-Taylor told the court Ms Buttrose was writing directly to him about Lattouf’s employment.

“We say that influence was exercised through the pressure which she [Ms Buttrose] brought to bear firstly on Mr Anderson and then on Mr Oliver-Taylor,” Mr Fagir says.

Antoinette Lattouf‘s legal team has reiterated that the case remains “as it always has been” — that the presenter was taken off air for “reasons which include her opinions, and further, and in the alternative, reasons which included her opinions and her race”.

Mr Fagir urged the court to reach the conclusion that one of the reasons his client was removed off air was not only that “she held and manifested particular views”, but that she did so “in the circumstances where she was herself of Lebanese heritage”.

“That’s a matter of which ABC managers were perfectly aware. That’s a matter which they regarded as relevant, for reasons have never been explained.

“And we absolutely maintain, and urge the court to find, that Ms Lattouf’s race was a reason for her dismissal.”

Mr Fagir continued, adding that the reasons she was given for being taken off air “were not the real reasons” and there were other factors at play.

He added that while the case “is not as clear” in relation to race, this is a “remarkable case” in relation to political opinion, in that there is such a “weight of material recording the hostility”.

“What the ABC needs to do to discharge its onus in relation to both of the allegations … is to explain this utterly abnormal exercise and the reasons for it.

“And exclude, as a reason, the fact that Ms Lattouf is not only someone critical of Israel and sympathetic to the plight of the Palestinian people, but that she was a Lebanese woman who held and manifested those views.”

Mr Fagir is discussing the evidence provided by former ABC Radio executive Steve Ahern, former acting editorial director Simon Melkman and head of audio content Ben Latimer.

The exchange between Mr Fagir and Justice Darryl Rangiah centres on a meeting between the senior ABC managers and former ABC Radio Sydney content director Elizabeth Green.

Mr Fagir says Mr Ahern’s evidence was “confused as to the timing” of the meeting, while Mr Latimer “doesn’t remember anything about Ms Green at all”.

However, Mr Melkman said he recalled Ms Green being at the meeting and that a direction was asked, but he couldn’t remember the answer.

“We’ve said in our submission that that is evidence that is difficult to accep,” Mr Fagir said of Mr Melkman’s evidence.

There’s been some back and forth between Mr Fagir and Justice Darryl Rangiah over the difference between holding an opinion versus expressing an opinion.

The significance of this is centered around the argument being made by Ms Lattouf’s legal team that her being taken off air due to the expression of an opinion is a direct conflict against the Fair Work Act.

According to the Fair Work Act’s section 772, it’s not legal to  terminate someone’s employment due to a political opinion they hold.

Ms Lattouf’s legal team is arguing that there’s no difference between holding an opinion and expressing that opinion.

The Federal Court has just returned from a break.

Ms Lattouf’s lawyer, Oshie Fagir, has resumed his closing submissions.

While we wait for the hearing to resume at 2:15pm, let’s revisit some other moments that occurred during the hearing so far.

Something of note was Ms Lattouf’s legal team taking aim that she had been labelled an activist, pointing to a potential double standard.

For context, former ABC Chair Ita Buttrose described Ms Lattouf as an activist when she took to stand earlier this month.

According to Mr Fagir, Ms Lattouf’s “opinions critical of the conduct of the state of Israel, and sympathetic to the human rights of the Palestinian people” had been described by the ABC in its defence as “contentious”, referring to the broadcaster’s need to appear as impartial.

Mr Fagir described this outlook as a “remarkably facile mode of analysis” for a series of “very senior executives in a broadcaster”. 

“The idea that it is an adequate analysis to label someone as an advocate or an activist, or refer, in some superficial way, to impartiality — it’s surprising. One might expect a bit more nuance, in relation to that matter,” he said.

But My Fagir pointed out that such labels of “activist” or “advocate” had been applied to other people employed by the ABC who had shared their opinions on certain issues.

“Whenever it’s suggested that Ms Lattouf is an activist or an advocate, and the labels not applied to Ms [Laura] Tingle or Ms [Patricia] Karvelas or the person who’s an activist in relation to climate change and recycling, or the person who’s an activist or a person who expresses views about violence against women — that involves a judgement on the relative merits of the opinions,” he said.

“And the fact that Ms Lattouf’s opinions are labelled ‘controversial’ and ‘contentious’, and that she is labelled an advocate or an activist, itself is an indication of an a priori hostility to the opinions which she holds, and betrays a starting point which is hostile to those views.”

The Federal Court has adjourned until 2:15pm today.

Let’s take a look back at some of the main points we’ve heard at today’s closing submissions from Ms Lattouf’s legal team:

• Oshie Fagir said Ms Lattouf was subject to a lobbying campaign because of her opinions on Israel and Gaza
• Mr Fagir said there was no direction given to Ms Lattouf regarding her use of social media
• He argued evidence from Chris Oliver-Taylor stating that Ms Lattouf has been given a direction to not post on social media should not be accepted
• Ms Lattouf’s lawyers described the case as straightforward and that there was no “deep factual or legal complexity” to this case
• Mr Fagir has rejected the notion that Ms Lattouf had breached the ABC’s personal use of social media policy

Mr Fagir rejected the suggestion that Ms Lattouf’s employment should have come under question because of complaints about her appearance on ABC Radio Sydney.

The Federal Court has previously heard that former ABC chair Ita Buttrose was “over” receiving complaints about Ms Lattouf.

Mr Fagir says there was nothing unusual or abnormal about the ABC receiving complaints about staff.

He says there were established protocols for dealing with email campaigns directed at the ABC.

Mr Fagir has shot down the notion that Ms Lattouf had breached the ABC’s personal use of social media policy, stating that such an idea should be “disbelieved”.

During his examination, Mr Oliver-Taylor argued that he believed Ms Lattouf had breached the national broadcaster’s policy.

Mr Fagir said it is “unconventional, to say the least” for an employee to be disciplined that they may have breached a policy. 

For context, it came to light during the hearing that when the ABC’s editorial policies team reviewed Ms Lattouf’s social media presence, they concluded she had not breached the policy.

Mr Fagir said Mr Oliver-Taylor was unable to articulate “at all” a reasoning process “which might have led him to that conclusion”.

“Whether the conclusion was reasonably available or not, he himself could not explain how he came to that view, tentative as it may have been.”

Mr Fagir is arguing that the evidence from Mr Oliver-Taylor that Ms Lattouf was given a direction to not post on social media should not be accepted.

The reason for that is in part due to a written note from Mr Oliver-Taylor that had been tendered to the court, which uses the word “request”.

“There would be some cases where ones whole case might turn on this sort of file note. One might point to it and say, ‘This is sufficient basis to reject this claim of a belief that a direction had been given’.”

Mr Fagir has again described the case as straightforward, stating that, while the facts might be “detailed” and that the evidence be “existence”, there is no “deep factual or legal complexity” to this case.

He added that the factual questions are “readily answered”.

“In the context of those facts: A campaign to remove based on those opinions, extensive internal discussion about the opinions, and then a removal on grounds, which are not admitted to be spurious but are clearly spurious.

“As a starting point, if one asks the question at that point: ‘Has the ABC disproved [or] excluded the possibility that Ms Lattouf’s opinions were a reason for her dismissal?’, one would think the answer would be reasonably clear.” 

For some context: The direction Mr Fagir is talking about is a reference to an earlier argument by the ABC’s lawyers that Ms Lattouf was given a clear direction about her use of social media during her contract.

Ms Lattouf’s lawyers argued she was given advice on the type of content to post, but not told explicitly not to.

During evidence Elizabeth Green, Ms Lattouf’s former manager, agreed with the presenter’s evidence that the pair decided posting information from a “verified source” or “reputable organisation” would be OK.

Mr Fagir said during the closing arguments that it’s not seriously arguable that Ms Lattouf was given a direction regarding her social media usage.

“But, we would go a step further … that Mr Oliver-Taylor and Mr [Ben] Latimer knew perfectly well that no direction had been given, because they were told that by Ms Green.”

Mr Fagir outlined the allegation that Ms Lattouf breached a direction by ABC management regarding social media.

“It is pellucidly clear, in my respectful submission, that no direction was given. It is clear that the relevant decision maker, Mr Oliver-Taylor, and those advising him, knew that no direction was given.”

Mr Fagir told the court the ABC executives who made the call to take Ms Lattouf off air knew “nothing” about her work.

“All the relevant actors knew about Lattouf … they knew next to nothing about her work, they knew nothing about her background, several of them say they didn’t know who she was. All they knew was that she had expressed views of a certain kind.”

During their closing arguments, Oshie Fagir, a member of Ms Lattouf’s legal team, has said that while the case is on one level “factually dense”, he also described the case as factually straightforward, with some basic and uncontroversial facts.

This is that Ms Lattouf was hired for a week to present “a light, bright mornings radio program”.

“As soon as she appears on air, she’s subject to a lobbying campaign, the purpose of which is to remove her from air.”

Mr Fagir said this campaign had “nothing whatever to do with her work”, but because of her opinions on Israel and Gaza.

“48 hours later, she’s sacked.”

Ms Fagir added that, in the time between Ms Lattouf appeared on air and was subsequently taken off air, “there are many emails and many text messages exchanged internally within the ABC”, referring frequently to the presenter’s opinion and race.

After discussion between both the ABC and Lattouf’s legal team with Justice Darryl Rangiah regarding tendered documents and submissions, including the relevance of the documents tendered around the presenter’s Instagram following, the closing arguments have now begun.