1
Fair Work Act 2009
s.773—Termination of employment
Antoinette Lattouf
v
Australian Broadcasting Corporation
(C2023/8096)
DEPUTY PRESIDENT BOYCE SYDNEY, 16 FEBRUARY 2024
Application to deal with an unlawful termination dispute – Notice to Produce documents –
absence of satisfaction that certain orders to produce documents satisfy the relevant tests for
them to be made in the context of the jurisdictional objection (no termination/dismissal) to be
determined.
Background
[1] This decision concerns the resolution of the dispute between Ms Antoinette Lattouf
(Applicant), and the Respondent, the Australian Broadcasting Corporation (ABC), in respect
of the Applicant’s request for orders for production of documents.
[2] On 2 February 2024, as required by the Directions issued on 23 January 2024, the ABC
filed submissions and evidence in support of its contention that the Applicant’s Amended
Application (filed 10 January 2024) ought be dismissed, in whole or in part.
[3] Relevantly, and in short compass, the ABC’s evidence is that at a meeting with the
Applicant at around midday on 20 December 2023, the Applicant was advised “we have made
[a] decision to take you off-air and we do not require you to come in tomorrow [Thursday,
21/12/23] and Friday [22/12/23]”. Present at this meeting were Mr Ronald (Mark) Spurway
(Acting Manager, ABC Radio Sydney), Mr Steve Ahern (Acting Head of Capital City
Networks), Ms Elizabeth Green (Content Director, ABC Radio Sydney), and the Applicant.
The ABC’s case is that the Applicant was not terminated (or dismissed) at this 20 December
2023 meeting, and that her casual engagement (for the period 18 to 22 December 2023, which
she was paid for) simply came to an end.
[4] The Applicant contends that she was not only taken off-air by the ABC on 20 December
2023, but terminated (dismissed).
[5] In Coles Supply Chain v Milford,1 a Full Court of the Federal Court has determined that
the Commission must (where a respondent employer has raised an objection of the nature
present here, i.e. that a termination has not occurred) decide for itself whether jurisdiction exists
for the Commission to conduct a conference and issue a certificate under s.776 of the Act. Such
[2024] FWC 423
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 423
2
a determination does not involve the making of findings as to the reason or reasons for a
purported termination.
[6] On 7 February 2024, the Applicant filed a Form F52, being an application for orders for
production of documents (Production Orders).
[7] On 8 February 2024, the ABC’s legal representative, Mr Dudley, emailed Chambers
setting out objections to the Production Orders, and proposed alternative orders for production.
[8] Post receipt of the ABC’s objections, the Applicant’s legal representative, Ms Parker,
emailed Chambers requesting that the matter be listed for hearing on 13 or 14 February 2024
to resolve the disputed Production Orders. On 8 February 2024, the matter was listed for this
hearing to take place on 13 February 2024.
[9] At the hearing, the Applicant was represented by Mr Christopher Parkin, of Counsel,
instructed by Mr Josh Bornstein, Principal, and Ms Penelope Parker, Senior Associate,
Maurice Blackburn Lawyers, and the ABC was represented by Mr Ian Neil, of Senior Counsel,
and Ms Vanja Bulut, of Counsel, instructed by Mr Ben Dudley, Partner, and Ms Mary-Anne
Nolan, Associate, Seyfarth Shaw Australia lawyers.
Power to order production of documents
[10] The power to order (or require) the production of documents arises from the
Commission’s power to inform itself “in such manner as it considers appropriate” pursuant to
ss.590(1) and (2)(c) of the Fair Work Act 2009 (Act). In other words, orders for the production
of documents are essentially orders made upon the Commission’s own initiative, albeit they are
generally made pursuant to a request from a party.
[11] In exercising its discretion to make orders for production, the Commission is guided
(but not necessarily required to follow) the practice used by courts in civil proceedings when
issuing subpoenas, which includes the application of the test of adjectival (or apparent)
relevance.2
Agreed Production Orders
[12] In an effort to narrow the scope of the dispute as to the form of the Production Orders
to be made, on 12 February 2024, my Chambers emailed the parties my preliminary comments
and observations in relation to each of the Production Orders requested, and enclosed a table
setting out and consolidating the respective positions and arguments of the parties.
[13] At the commencement of the hearing on 13 February 2024, the parties having conferred
between each other, advised that the following Production Orders (Category 1, 5, 6 and 8
documents) were agreed (or not opposed) (Agreed Production Orders):
• Category 1 documents
Documents on the Applicant’s employee file or personnel file (however so described
or kept) dated, or in respect of the period, after 29 March 2022.
[2024] FWC 423
3
• Category 5 documents
All documents between 18 December 2023 and 5 January 2024 that record or refer
to any decision by the Respondent to pay the Applicant for 21 and 22 December
2023.
• Category 6 documents
All correspondence between any employee of the Respondent (including but not
limited to persons employed in People Services & Remuneration) between 18
December 2023 and 5 January 2024 that refer to the Applicant’s pay for the period
18-31 December 2023.
• Category 8 documents
All documents created between 20 December and 23 December 2023 evidencing or
constituting communications to which any one or more of the following persons
were party:
(a) Chris Oliver-Taylor;
(b) Mark Spurway;
(c) Steve Ahern;
(d) Elizabeth Green;
(e) Ben Latimer;
that record the content of the meeting between the Applicant, Mr Ahern, Mr
Spurway and Ms Green on 20 December 2023.
Disputed Production Orders
[14] The remaining Production Orders (Category 2, 3, 4 and 7 documents), as sought by the
Applicant, are opposed by the ABC (Disputed Production Orders). They read:
• Category 2 documents
All documents referring to, or recording the substance of what was discussed at the
meeting described at paragraph 3.1(4)(g) of the Respondent’s amended Form F9A.
• Category 3 documents
All documents created between 18 December and 23 December 2023 evidencing or
constituting communications to which any one or more of the following persons
were party:
(a) Chris Oliver-Taylor;
(b) Mark Spurway;
(c) Steve Ahern;
[2024] FWC 423
4
(d) Elizabeth Green;
(e) Ben Latimer;
that record or refer to the decision to remove the Applicant from air.
• Category 4 documents
All documents created between 18 December and 23 December 2023, evidencing
or constituting communications to which any one or more of the following persons
were party:
(a) Chris Oliver-Taylor;
(b) Mark Spurway;
(c) Steve Ahern;
(d) Elizabeth Green;
(e) Ben Latimer;
that refer to ‘terminating’, ‘dismissing’, ‘sacking’, ‘letting go’ or ‘removing’, the
Applicant from her employment with the Respondent.
• Category 7 documents (in form amended by the Applicant on 12 February 2024)
All documents created between 18 and 23 December 2023 evidencing or
constituting communication between the following persons:
(a) David Anderson and any other person;
(b) Ita Buttrose and any other person;
(c) Robert Goot and any employee of the Respondent (to the extent not captured by
(a) or (b); and
(d) Sophie Elsworth of The Australian Newspaper and any employee of the
Respondent (limited only to communications on 20 December 2023) (to the extent
not captured by (a), (b) or (c));
that refer to the Applicant’s employment with the Respondent or her position as a
presenter on the ABC.
The ABC’s objections
[15] The ABC’s submissions as to why none of the Disputed Production Orders ought be
made are grounded upon four reasons (or problems).
[16] Firstly, as a jurisdictional prerequisite to the Amended Application proceeding further,
the Commission needs to determine whether or not the Applicant has been “terminated” by the
ABC as required by s.773(a) of the Act (Jurisdictional Issue). There is no discernible
[2024] FWC 423
5
distinction between the term “terminated” (undefined under the Act), and the term “dismissal”
(defined under s.12 of the Act to mean “dismissed” within the meaning of s.386 of the Act).
[17] Relevantly, termination of employment (including by way of repudiation) is a legal act,
and legal acts are to be assessed “exclusively objectively”, as the High Court has repeatedly
stated.3 What matters is what was said or done by the ABC to the Applicant. What a party
thought it was doing, discussed internally, or thought afterwards, is irrelevant.4
[18] On the Applicant’s own submissions, each of the Disputed Production Orders are
directed toward documents that will only concern subjective facts or considerations, which, as
a matter of law, are entirely irrelevant to the Jurisdictional Issue for determination at this stage
of proceedings.
[19] Secondly, closely aligned to the first reason, “termination of employment is a unilateral
act that affects a bilateral relationship or contract”. In essence, only those acts (or words) that
are actually communicated or made manifest to the other party (in this case, by the ABC to the
Applicant) are relevant to the determination of the Jurisdictional Issue. A termination of
employment cannot happen in secret. Again, each of the Disputed Production Orders go to
what was said and done internally at the ABC, which are not relevant considerations in the
resolution of the Jurisdictional Issue.
[20] Thirdly, to the extent that the Applicant asserts that any of the Disputed Production
Orders are capable of identifying, or shedding light upon, the acts or words of the Respondent
that were communicated to the Applicant, the Applicant has assumed a factual controversy that
has not yet arisen. In other words, to date, there has been no evidence or submission to the
effect that there is a factual controversy or dispute as to what was said by those present at the
meeting with the Applicant on 20 December 2023, whereby, on the ABC’s evidence, the
Applicant was advised that she would not be presenting the “Sydney Mornings” program on 21
and 22 December 2023 (but would nonetheless be paid for her shifts on those days).5
[21] Fourthly, the Applicant’s arguments are legally incoherent. What the ABC’s officers
and employees, or employees of other media outlets, or Mr Goot (a stranger to the ABC),
thought or heard about what the ABC was going to do or did, or later thought or heard, is
entirely irrelevant. Such matters concern evidence of “pure subjectivity”.
[22] In summary, having regard to the four reasons set out in paragraphs [16] to [21] above,
Mr Neil SC submitted:
“The task that the Commission has at this stage of the proceedings is to ascertain
whether the statutory concept of the termination of employment at the initiative of the
employer is satisfied in this case; is engaged by the Applicant’s substantive
application. That will entail making findings of fact about how the Respondent [ABC]
objectively conducted itself towards the Applicant in a way that was manifest to or
communicated to the Applicant, and then making an assessment of its own about the
legal effect of what was said and done of those objective facts. That’s the only task.
The documents that are sought in categories 2, 3, 4 and 7 are presently irrelevant and,
in relation to Category 7, will always be so.”6
[2024] FWC 423
6
The Applicant’s position
[23] Whilst acknowledging that the task confronting the Commission is based upon a purely
objective test,7 Mr Parkin submitted that:
a) the Commission is entitled to look at the broader factual matrix to determine what
occurred at the 20 December 2023 meeting;
b) whilst the Applicant concedes that documents produced pursuant to the Disputed
Production Orders will not be determinative of any issues, they will assist the
Commission as part of the fact-finding process to work out exactly what happened
at the 20 December 2023 meeting;
c) if there are internal emails workshopping what was going to be said to the Applicant
at the 20 December 2023 meeting, such emails will be relevant as to what was
actually said at the 20 December 2023 meeting;8
d) although the question being asked of the Commission concerns what the ABC
actually did, what the ABC said they did, including to the media and others, will be
probative to some degree;
e) the Applicant’s case as to termination of employment not only concerns a
termination initiated by the ABC, but also a ‘repudiation’, in the sense that the ABC
acted in such a way towards the Applicant that it evinced an intention to no longer
be bound by the contract it made with the Applicant. Public statements that the ABC
has made via its Chairperson to third parties (including the media and members of
the public) can constitute conduct that evinces such an intention; and
f) the ABC carries the onus to demonstrate that it did not terminate the Applicant. It
is therefore for the ABC to demonstrate what happened at the 20 December 2023
meeting. The Applicant is not required to necessarily go into evidence about that
meeting. It follows that the ABC’s submissions about a factual controversy that has
not yet arisen misconceives the manner in which the ABC’s “jurisdictional objection
should work”.9
Consideration
[24] For the reasons which follow, I am not satisfied that the Disputed Production Orders
satisfy the relevant tests for them to be made.
[25] Applying the practice (and law) used by courts in civil proceedings when issuing
subpoenas, it is the Applicant that bears the onus to establish that the Disputed Production
Orders have a legitimate forensic purpose, in the sense that material likely to be produced
pursuant to the Disputed Production Orders holds apparent relevance to the Jurisdictional Issue
to be resolved in these proceedings (i.e. by way of the documents produced ‘throwing light’
upon relevant issues, or having a bearing (that is not “unreal, fanciful or speculative”) upon
relevant issues.10 In essence, the Applicant must be able to show that it is likely that the
[2024] FWC 423
7
documentation sought to be produced (pursuant to the Disputed Production Orders) will
materially assist in respect of an identified issue, or that there is a reasonable basis (beyond
speculation) that it is likely that the documentation sought to be produced will do so.
[26] There is no suggestion in these proceedings that the Applicant’s engagement by the
ABC has been other than upon a casual basis (see High Court decision in WorkPac Pty Ltd v
Rossato11). The ultimate determination of the jurisdictional issue raised by the ABC in these
proceedings will therefore be guided by the decision of the Full Bench of the Commission in
Shane John Varichak v COG Regional Team Pty Ltd12.
[27] Further, as accepted by both parties,13 the resolution of the Jurisdictional Issue in these
proceedings does not involve a search for the uncommunicated subjective motives or intentions
of the ABC.14 What matters is what each party, by their words and conduct (including
omissions), actually did.15
[28] I concur with the ABC’s contention that the Disputed Production Orders each seek
production of documents that go directly to the purported subjective motives or intentions of
the ABC, being motives or intentions which were not communicated to the Applicant prior to,
or at, the 20 December 2023 meeting. Indeed, it is readily apparent that:
a) Category 2 documents seek production of documents in relation to a discussion that
the Applicant was not present.
b) Category 3 and 4 documents seek production of internal communications between
ABC employees to which the Applicant was not involved.
c) Category 7 documents seek production of communications between persons not
present at the 20 December 2023 meeting (including third parties).16
[29] In the case of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd17(Toll), the High Court was
critical of the attention paid by the trial judge to materials that were received into evidence
which contained “largely irrelevant information about the subjective understanding of the
individual participants in the dealings between the parties”.18 The High Court went on to say
in Toll that such evidence “tends to distract attention from the real issues, giv[ing] rise to
pointless cross-examination and caus[ing] problems on appeal where it may be difficult to know
the extent to which the inadmissible material influenced the judgment at first instance.”19
[30] I will make orders reflecting the Agreed Production Orders. The application for orders
for production of documents filed by the Applicant on 7 February 2024 is otherwise dismissed.
DEPUTY PRESIDENT
THE WORK COMMISSION THE SEAZİ
[2024] FWC 423
8
Appearances:
Mr Christopher Parkin, of Counsel, instructed by Mr Josh Bornstein, Principal, and Ms
Penelope Parker, Senior Associate, Maurice Blackburn Lawyers, appeared for the Applicant.
Mr Ian Neil, of Senior Counsel, and Ms Vanja Bulut, of Counsel, instructed by Mr Ben Dudley,
Partner, and Ms Mary-Anne Nolan, Associate, Seyfarth Shaw Australia lawyers, appeared for
the Respondent.
Printed by authority of the Commonwealth Government Printer
PR771523
1 [2020] 300 IR 146, at [67] to [68]. Whilst this decision concerns general protections involving dismissal
applications made under s.365 of the Fair Work Act 2009 (Act), there is no suggestion that (or good reason as
to why) these same requirements do not apply to unlawful termination applications made under s.773 of the
Act.
2 Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847, at [23]; Clermont Coal Operations Pty Ltd v
Brown & Dews and Others [2015] FWCFB 2460, at [19]; Toby Tucker v State of Victoria (State Revenue
Office) [2021] FWCFB 1188, at [18]. There is no suggestion that the test to be applied by the Commission to
a notice to produce inter-parties is to be treated any differently to a notice to produced issued to third parties.
3 See, for example, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd
[2022] HCA 1; (2022) 398 ALR 404; and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; WorkPac
Pty Ltd v Rossato (2021) 271 CLR 456.
4 See Catherine Sirl v HK Group Pty Ltd t/a Buzzbee Long Day Care [2017] FWC 543, and the authorities cited
therein, at [117]-[121].
5 Mr Neil SC acknowledged that this may change, depending upon what evidence is filed by the Applicant,
Transcript, 13 February 2024, PN39.
6 Transcript, 13 February 2024, PN107-PN108.
7 Ibid, PN45-PN46.
8 Ibid, PN50.
9 Ibid, PN44-PN103.
10 Alister v The Queen (1984) 154 CLR 404, at 414; Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378, at
[12]; Rinehart v Rinehart [2018] NSWSC 1102, at [43]-[50]; See also Zaki v Russells [2019] FCCA 2236, at
[18]–[26], for a neat summary of the broad legal principles applicable to the determination of objections to
subpoenas (especially early subpoenas).
11 (2021) 271 CLR 456.
12 [2022] FWCFB 37 (Catanzariti VP, Anderson DP, Hampton C). Note reference, at [33], to NSW Trains v James
[2022] FWCFB 55, in the sense that s.386(1) of the Act was applied in Shane John Varichak v COG Regional
Team Pty Ltd on the basis that it refers to “termination of the employment relationship and/or the contract of
employment”.
13 Transcript, 13 February 2024, PN45-PN46.
14 Gelagotis v Esso Australia Pty Ltd (t/as Esso) [2018] FWCFB 6092, at [119] (citing Laurinda Pty Ltd v
Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, at 658 (per Deane and Dawson JJ)). See also,
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, at 105-106, [25]; and Equuscorp Pty
Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471, at 483, [34].
15 Ibid.
16 In relation to Category 7 documents, see the Applicant’s Outline of Submissions, 13 February 2024, at [16]-
[28]. See also grounds in respect of Category 7 documents set out in Form F52 (filed 7 February 2024).
Compare, grounds of ABC’s objections raised in email from Mr Dudley to Chambers, 8 February 2024
(11:36am).
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb3847.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2460.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1188.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc543.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6092.htm
[2024] FWC 423
9
17 [2004] HCA 52; [2004] 219 CLR 165.
18 Ibid at 177-178 [35].
19 Ibid.
