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In handing down pecuniary penalties for its termination of Antoinette Lattouf, the Federal Court was critical of the ABC for bending to pressure from a lobbyist group.
In addition to the $70,000 in compensation, Justice Darryl Rangiah ordered the Australian Broadcasting Corporation (ABC) pay journalist and advocate Antoinette Lattouf $150,000 in pecuniary penalties.
The national broadcaster was found in June to have breached the Fair Work Act (FWA) and the enterprise agreement by terminating Lattouf’s employment “for reasons including that she held political opinions opposing the Israeli military campaign in Gaza”.
At a hearing to determine penalty, the ABC and Lattouf clashed over the appropriate amount, with the former arguing any loss and damage was “confined to a single employee, did not include any financial loss, and has been fully addressed by the compensation”.
In his decision, handed down on Wednesday (24 September) morning, Justice Rangiah said the contraventions caused Lattouf very significant consequences beyond the loss of work.
“For most people, employment is not just a source of income, but contributes substantially to sense of purpose, identity and self-worth.
“The unlawful termination of their employment for alleged misconduct, particularly where the employee has been given no chance to defend themselves against the accusations made, can be devastating.
“The human consequences of the unlawful termination of employment ought not be underestimated,” Justice Rangiah said.
In coming to an appropriate penalty sum, Justice Rangiah tied up several loose ends, starting with the number of contraventions.
On the ABC’s argument, any breaches under section 50 of the FWA – which covers the contravention of an enterprise agreement – should be considered a single contravention. On the other hand, Lattouf argued there were three separate contraventions under that section.
Having found section 50 contains different categories of contraventions, Justice Rangiah was satisfied the ABC was liable to four separate penalties of $93,900 each, or a maximum of $375,600.
Reflecting on arguments about who was responsible for the unfair dismissal, Justice Rangiah found the contraventions could not be attributable to the conduct of those “at the very top of the ABC’s management”, including former chair Ita Buttrose.
However, it did come “from the next rung down”, that being former chief content officer Chris Oliver-Taylor.
While the evidence did not establish Oliver-Taylor “intentionally or deliberately” contravened the FWA, or that he was aware there was a legal prohibition on the termination of an employee on the basis of political opinion, Justice Rangiah found he was aware the ABC may have been acting in contravention of the enterprise agreement.
“It would be fanciful to think a manager of his seniority would not be aware of at least the broad process for dealing with allegations of misconduct. That process involved giving the employee an opportunity to respond, except in cases warranting summary dismissal.
“Oliver-Taylor must have known this was not an occasion for summary dismissal, given there was no breach of a direction and no more than a suspicion of the breach of a policy,” Justice Rangiah said.
The evidence did not establish the contravention of the enterprise agreement was intentional, but Oliver-Taylor “blithely ignored the risk that the ABC would be in contravention … and forged ahead with his decision to terminate Lattouf’s employment anyway”.
Another feature of the dispute between the parties was the leaking of a story about Lattouf’s dismissal to The Australian, which had been published before she had arrived home that same day.
While Justice Rangiah said the leak could not be attributed to the ABC as an organisation, and there was no evidence it came under the authority of senior managers, he was concerned about the lack of investigation from the broadcaster.
Without this investigation, Justice Rangiah inferred the ABC’s “apology for the distress caused to Lattouf has its limits”.
Speaking of contrition, Justice Rangiah accepted that apologies were made to Lattouf following his June judgment and acknowledged a further apology given by the chief people officer inside the courtroom.
“Consequently, although I accept that the ABC has demonstrated contrition, that contrition came at a late stage and was certainly not as full it might have been,” Justice Rangiah said.
The final point of contention was on ABC’s submission that the contraventions arose “in extraordinary and unique circumstances”.
In circumstances where it was confirmed the ABC receives complaints from lobbyist groups often, Justice Rangiah dismissed this submission.
In surrendering to the demands of a pro-Israel lobbyist group, the broadcaster “ignored the equally important statutory obligation of maintaining its independence and integrity”.
“The ABC let down the Australian public badly when it abjectly surrendered the rights of its employee … to appease a lobby group,” Justice Rangiah said.
Justice Rangiah said this was an important consideration in the weight of the penalty to deter the ABC from future contraventions.
“It is necessary to remind the ABC that, as a public institution, it is required to maintain high standards in its treatment of employees.
“More particularly, it is expected and required to treat its staff in accordance with the requirements of the FWA,” Justice Rangiah said.
The case: Lattouf v Australian Broadcasting Corporation (Penalty) [2025] FCA 1174.
