ABC proposes ‘modest' payout to Lattouf if it loses court battle, despite admitting it added to her psychological pain
The ABC accepts taking Antoinette Lattouf off air was a contributing factor in the psychological condition that underpins her claim for hurt and distress, the broadcaster has told the federal court.
In closing submissions for the ABC, Ian Neil SC said that in the event the corporation was found to have breached the Fair Work Act, the broadcaster did accept it was a contributing factor to the psychological distress Lattouf now suffers.
Lattouf, who is suing the ABC for unlawful termination, told the court in earlier evidence she suffered from paranoia and sleeplessness since she was removed from air three days into a five-day casual contract in December 2023. She had also become a heavier drinker, she said.
Neil did not submit there should be no compensation, but that there was no evidence the ABC was aware of a pre-existing psychological condition, and any compensation should be 'modest'.
Wrapping up the ABC case, Neil said the evidence showed there were 'many intermingled causes for the exacerbation of her pre-existing psychological condition'.
'One is the psychological condition itself, and the other is all the other things that operate on her mind: the burden of being a poster girl for justice, humanity and a free and fair press; the adverse consequences of attracting attention as an activist for one perspective of a hotly controversial issue.'When asked by Justice Darryl Rangiah if Lattouf, 41, was only caused distress because she had an underlying pre-existing psychological condition, Neil replied: 'Yes, that's the evidence in this case.'
Neil argued that the ABC's view was that Lattouf not sacked but she was 'relieved of the obligation to perform any further work'.
The removal – which was 'designed to protect the ABC' – had nothing to do with discrimination, race or political opinion, he said.
'She was relieved of the obligation to perform any further work. We have the right to do that. There was no express right for Ms Lattouf to actually perform work.
'It's not a case about discrimination, it's not a case about differential treatment,' he said. 'It's not an unfair dismissal case. It's not a case about the fairness of anything that was done in relation … to Ms Lattouf.'
The ABC asked Rangiah not to rely on testimony by Lattouf's line manager, Elizabeth Green. Earlier in the hearing, Green gave evidence that Lattouf was not given a direction not to post on social media about the Israel-Gaza war.
Throughout the hearing, both sides have explored the question: what is the difference between a direction and a suggestion?
Neil said no top ABC managers recall Green telling them that she did not give Lattouf a direction, and they were acting on the assumption she was given a direction not to post.
'She was told, in effect, not to post anything in relation to the conflict in Israel and Gaza during the week she was with the ABC,' he said.
Neil pointed to a text message sent by the chief content officer, Chris Oliver-Taylor, about Lattouf to the managing director, David Anderson. In it, Oliver-Taylor wrote: 'Confirming my view that she has breached our editorial policies whilst in our employment.
'She also failed to follow a direction from her manager not to post anything whilst working with the ABC. As a result of this I have no option but to stand her down.'
The text message was sent to Anderson minutes after a key ABC meeting, when Lattouf's fate was being decided.
Neil said that if Oliver-Taylor had heard Green say during that meeting that she did not give Lattouf a direction, why would he have immediately lied to the managing director in that text.
'What earthly reason would he have for lying, misrepresenting, what he had been told … two minutes before, to his superior,' he said.
Neil said the sole reason for Lattouf's dismissal was the posting of the Human Rights Watch (HRW) post. Lattouf was let go after she shared the post that said Israel had used starvation as a 'weapon of war' in Gaza.
Neil said the post was not the same as the ABC news report on the HRW report.
'This wasn't a like-for-like comparison, the ABC had not reposted the Human Rights Watch story as Ms Lattouf had done,' he said.
'They had done something much more nuanced and balanced than that.'
He said the 'the comparison was never a sound one'.
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