This is the portion of the Federal Court decision delivered on 25 June in the case brought against the ABC by Ms Antoinette Lattouf which I reported about in a post yesterday, which deals with the issue of the relief the court awarded Ms Lattouf.
“Relief
656 In her Further Consolidated Amended Originating Application, Ms Lattouf seeks the following relief:
(a) declarations that the ABC contravened ss 50 and 772(1)(f) of the FWA;
(b) an order for compensation for non-economic loss;
(c) orders that the ABC pay pecuniary penalties for its contraventions;
(d) an order that the ABC implement a compliance program to educate its managers on the requirements of cl 55 of the Enterprise Agreement.
657 Ms Lattouf’s closing submissions do not address her claim for a compliance program and I proceed on the basis that the claim has been abandoned.
658 The claim for the imposition of a pecuniary penalty will be set down for hearing on another date.
659 I propose to make declarations that the ABC contravened ss 50 and 772(1) of the FWA.
660 I will proceed to determine Ms Lattouf’s claim for compensation for non-economic loss.
661 Section 545 of the FWA provides, relevantly:
545 Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1) The Federal Court…may make any order the court considers appropriate if the court is satisfied that a person has contravened…a civil remedy provision.
…
(2) Without limiting subsection (1), orders the Federal Court…may make include the following:
…
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
…
662 Compensation may be awarded for non-economic loss, including for shock, distress, hurt or humiliation because of a contravention of the FWA: Ridd at [155]-[157].
663 In Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, Barker J observed at [423] that if compensation is to be awarded, one of the principal tasks is to ensure there is an appropriate causal connection between the contravention and the loss claimed: see also Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 155.
664 In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, Lee J held at 9, that the Court will:
…have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened. The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
(Citation omitted.)
665 In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, the Full Court held at [28]:
The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions).
666 In Transport Workers’ Union of Australian v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216; 334 IR 1216 (Qantas (Compensation Claim)), Lee J observed at [208]:
As is well recognised, the assessment of compensation for emotional distress or the like is inherently imprecise and non-scientific due to the fact that the Court is required to place a monetary value on something that is not easily able to be financially quantified. In this sense, it has been observed that it is impossible to precisely translate such non-economic loss into a monetary sum. Nevertheless, the Court must, doing the best that it can, award an amount it considers to be reasonable compensation for the non-economic loss sustained, taking into account the individual facts of each case.
(Citations omitted.)
667 In Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481, Lee J observed at [28]:
Other factors that have contributed to a loss are beside the point unless they point to the loss not being causally related or the proposed compensatory order being other than “appropriate”.
668 Ms Lattouf deposes that immediately after she was terminated, she felt shock and humiliation. She says the termination of her employment, including the allegation that she had engaged in editorial wrongdoing and breached a management directive, was widely publicised. Ms Lattouf felt this affected her reputation and perception of her integrity, causing her great distress. Over the following weeks she experienced notable dips in her mood, became increasingly anxious and found herself crying frequently throughout the day.
669 Ms Lattouf deposes that due to the public scrutiny surrounding her termination, she also experienced feelings of paranoia which caused her to feel unsafe. She had never experienced such feelings before.
670 Ms Lattouf deposes she has had trouble sleeping, her anxiety is heightened, her appetite has been suppressed and she has had three panic attacks. She drinks alcohol more frequently now and takes sedatives to help her sleep.
671 Ms Lattouf deposes that she is seeing her psychologist more frequently. Her personal relationships have been adversely affected to some extent.
672 Ms Lattouf deposes that on two occasions after her termination she has received threatening phone calls, resulting in her becoming increasingly worried for her safety and the safety of her family. However, I am not satisfied the threatening calls and death threats were related to the termination of her employment. Ms Lattouf made a number of controversial posts on publicly accessible social media platforms about the Israel/Gaza war. It is far more likely the threats against her resulted from her social media posts rather than the termination of her employment and its associated publicity.
673 It is apparent from observing Ms Lattouf in the witness box that the termination of her employment and the circumstances in which it occurred caused her great distress and continues to do so. That is unsurprising. She was dismissed on short notice. She was not given any opportunity to answer the allegations against her in circumstances where she had compelling answers to give. Any person would feel utterly dismayed and humiliated in those circumstances.
674 The high-profile nature of Ms Lattouf’s position as the presenter of Mornings meant her termination was bound to attract a high level of publicity. Indeed, The Australian had already indicated that it intended to write about the complaints concerning Ms Lattouf’s employment with the ABC and published an article shortly after the event stating that she had been “sacked”. I accept the negative publicity associated with her termination added to her distress.
675 Ms Lattouf relies upon the evidence of Dr Nigel Strauss, a consultant psychiatrist. Dr Strauss describes Ms Lattouf as having a reasonably long psychiatric history. I do not propose to describe the details of that history.
676 Dr Strauss diagnoses Ms Lattouf with an exacerbation of her underlying persistent depressive disorder with high levels of anxiety. Dr Strauss considers that Ms Lattouf’s prognosis is good and with the lapse of time, resolution of her legal dispute and ongoing treatment, she should eventually overcome the exacerbation.
677 The ABC submits that Dr Strauss’ opinion ought to not be accepted for reasons including that he made his diagnosis retrospectively and on the basis of only one consultation which was based entirely on Ms Lattouf’s subjective account. The ABC points out that Dr Strauss accepted under cross examination that the subject matter of the proceedings was just one of a number of factors that had exacerbated her underlying and pre-existing condition. Dr Strauss understandably did not attempt to identify the extent to which her termination exacerbated her pre-existing condition in comparison to other factors.
678 I accept Ms Lattouf’s evidence as to the distress and symptoms she has experienced as a result of the termination of her employment. I also accept Dr Strauss’ opinion that the termination of Ms Lattouf’s employment and the circumstances in which it occurred resulted in an exacerbation of her underlying and pre-existing psychiatric condition.
679 However, I find Ms Lattouf’s condition was also exacerbated by other factors, including ruminations about the conflict in Gaza and the threats she received. These are not causally related to her termination.
680 The extent to which the termination of Ms Lattouf’s employment exacerbated her underlying psychiatric condition cannot be separated out from other factors with any precision. Nevertheless, I accept the termination contributed significantly to the exacerbation. I find the exacerbation caused by the termination will resolve in time.
681 Ms Lattouf relies on cases involving discrimination or sexual harassment where compensation ranging between $90,000 and $140,000 was awarded for non-economic loss. In Qantas (Compensation Claim), Lee J awarded $100,000 to an unlawfully terminated employee who developed a major psychiatric illness as a result of the contravening conduct. I consider that those cases are not comparable with the present case.
682 Ms Lattouf contends an amount between $100,000 and $150,000 should be awarded to her for non-economic loss. The ABC submits that the Court should not award, “anything more than modest compensation”.
683 I consider that the appropriate award of compensation for Ms Lattouf’s non-economic loss is $70,000.
Conclusion
684 I have found that the ABC contravened s 772(1) of the FWA by terminating Ms Lattouf’s employment for reasons including that she held political opinions opposing the Israeli military campaign in Gaza. I have rejected Ms Lattouf’s allegations that the reasons for her termination included her race or national extraction.
685 I have held that the ABC contravened s 50 of the FWA by contravening cll 55.2.1, 55.2.2, and 55.4.1(f) of the Enterprise Agreement.
686 I will make declarations that the ABC breached ss 50 and 772(1) the FWA.
687 I have determined that Ms Lattouf will be awarded $70,000 for her non-economic loss pursuant to s 545(1) of the FWA.
688 I will make directions to bring the matter to a hearing on the question of whether any pecuniary penalty ought to be imposed on the ABC pursuant to s 546 of the FWA and, if so, in what amount.”