Even if the ABC wins Antoinette Lattouf’s case, it will still lose

The national broadcaster's mishandling of the Lattouf situation is an ongoing legal and reputational disaster, the latest in a long line.

“If I wasn’t sacked, what was it?” asked Antoinette Lattouf rhetorically, tweeting her bemusement at the latest twist in the ABC’s evolving defence against her claim that it sacked her unlawfully because of her political views and her Lebanese race.

If the ABC’s position is coherent, it’s doing a good job of creating the opposite impression. As of yesterday, half the media were reporting that the ABC had done a complete 180, reversing its original stance that it had terminated Lattouf from her short-term contract as a presenter because she breached its social media policy.?

The other half picked up its spin to the effect that no, it never said it had sacked her. Instead it “decided not to require [her] to perform the last two of her five shifts … because [she] had failed or refused to comply with directions that she not post on social media about matters of controversy during the short period she was presenting”.

Lattouf’s lawyer Josh Bornstein cleared it up: the ABC’s original response, filed with the Fair Work Commission, confirmed that it had terminated her employment, but it has since filed an amended response that says the opposite.

That’ll be the result of fresh legal eyes looking at the evidence and asking: “Um, are you sure you actually sacked her?” If the claim that it didn’t is made good, then her case in the commission fails altogether. I’m guessing the argument will be that what really happened after Lattouf’s famous reposting of a Human Rights Watch (HRW) post alleging “the Israeli government is using starvation of civilians as a weapon of war in Gaza”, was that the decision was made to pay her for her last two slots but not put her on air. Basically, bench her, then escort her to the car park.

That’ll be an interesting legal argument, but what’s more interesting is the air of panic pervading the ABC’s mishandling of this rolling legal and reputational disaster. Before we go into the detail, did the ABC seriously not realise that booting Lattouf mid-contract, in the current heightened atmosphere around Israel-Gaza, would cause an instant shitstorm?

Worse, the ABC knew what nobody else did at the time: that it was being bombarded by a coordinated campaign trying to lobby it into sacking Lattouf, driven by at least two WhatsApp groups called Lawyers for Israel and “J.E.W.I.S.H. Australian creatives and academics”. Did it not think this would come out, and that it would look very much like the public broadcaster had caved in to a political lobby group demanding blood?

What makes the amateurish incompetence unforgivable is the long history of fuck-ups that have preceded this. Its serial failures to defend its people from external abuse and ideological assaults (examples include Louise Milligan, Stan Grant and Sophie McNeill), its willingness to spend public money on defendable legal claims (Christian Porter, Andrew Laming, Bruce Lehrmann), the growing evidence of failure to protect employees from diverse backgrounds, and the obvious absence of a solid ethical or logical basis to how it enforces its staff social media policy — all have made it an easy target for criticism and ridicule. If it wins Lattouf’s case, it will still lose.

The ABC’s social media policy is designed to dissuade its presenters and staff from posting privately at all, although it claims that it neither encourages nor discourages that. The fact that the ABC has closed almost all its official social media accounts tells us how cowed it has become by the decade of Coalition/Murdoch-led torment it has endured. It runs scared now, by default.

The rules tell presenters to treat their private posts as if they’re speaking for the ABC. In practice, if a post attracts criticism, the ABC has been increasingly willing to throw its people under a bus.

Lattouf’s case exemplifies the problem: before she was hired, she had been posting very stridently about Israel’s actions in Gaza. So she was given the ridiculous injunction that, during the week she would be on air, she must not post on anything controversial. What does that mean? Nobody could pretend to know. But the subtext was obvious: Lattouf, and specifically Lattouf, was not allowed to talk about Israel.

When she did repost HRW’s report, which the ABC had already published as news, that breached her terms of engagement, not because it was inherently or obviously controversial (objectively, it could not have been), but because she had been warned off the subject matter entirely.

If she was terminated, then the legal question is why. Was it, as the ABC originally argued, because she was told “don’t do X” and she did X? Or was it because she had been placed in a special box of impossibility, to exist in which she was obliged to sacrifice fundamental human rights enjoyed by her peers?

If Lattouf was not an outspoken woman of Lebanese ethnicity who had not hidden her opinions on what Israel is doing, would she have been so pre-emptively constrained? Having published a post that didn’t express an opinion at all but simply reported what a leading human rights organisation had claimed, would she have been summarily silenced?

An organisation in touch with its own values would know the answers to these questions. The ABC, it is painfully clear, has no idea. Its staff has declared zero confidence in the managing director. It’s spinning in the void.