A key ABC justification for removing a pro-Palestine casual radio host might be ‘rather flimsy’, according to the judge overseeing her unlawful dismissal case.

Antoinette Lattouf was let go after three days of a week-long fill-in stint on ABC Radio Sydney‘s Mornings program when she shared a Human Rights Watch post that said Israel used starvation as a ‘weapon of war’ in Gaza.

She went after the public broadcaster in the Fair Work Commission and escalated the case to the Federal Court, where she has sued for penalties and damages.

On Friday, ABC barrister Ian Neil SC reiterated the broadcaster’s stance that then-chief content officer Chris Oliver-Taylor decided to remove Lattouf from her final two shifts because she had breached a direction.

The fill-in host had purportedly been directed not to post anything relating to the Israel-Gaza conflict on social media, although she has denied that claim.

Mr Oliver-Taylor also thought the decision was warranted because the journalist had potentially breached the ABC’s personal social media guidelines, the court heard.

But that position was questioned by Justice Darryl Rangiah.

‘Does that sound like a rather flimsy reason to take the applicant off air, that she may have breached the ABC’s policies or guidelines?’ the judge asked.

‘In context, no,’ Mr Neil said.

The journalist claims she was unlawfully dismissed because of her political opinion and race.

But the sole concern for Mr Oliver-Taylor and others within the ABC was that Lattouf’s social media activity would create a perception that the broadcaster was biased, Mr Neil argued.

While the radio host was let go for breaching a claimed direction, her direct supervisor Elizabeth Green said she never gave an order and merely advised Lattouf to refrain from posting about Israel and Gaza online.

‘What does it matter whether somebody labels it a direction, a request, advice?’ Mr Neil said.

‘It was a clear communication – don’t do this.’

Lattouf said she negotiated with Ms Green to be able to post objective facts from reputable sources.

Justice Rangiah also questioned why the decision to remove the presenter from air could not have simply been undone once she and Ms Green had come forward to say there had been no blanket order barring her from posting.

‘There was really nothing much to reverse, was there?’ he said.

But Mr Neil said the decision had been enacted at that point, another Mornings host had been found and it was ‘all over’ for Lattouf.

He also took aim at the way the case had been run, saying it was never about political opinion.

Lattouf claimed she was ousted because of pressure from a barrage of complaints from pro-Israel lobbyists that went to now-outgoing ABC managing director David Anderson and then-chair Ita Buttrose.

‘On the applicant’s case, the posting of the Human Rights Watch story could not have been an expression of opinion,’ Mr Neil said.

‘On her case, the contents of that story were an incontrovertible fact, not an opinion at all.’

Ms Buttrose challenged the decision on air despite management finding her criticism of Israel’s conduct in Gaza had not breached the broadcaster’s impartiality rules, it was revealed in court earlier this month.

On December 18 after Lattouf’s first shift on air, Ms Buttrose says she received a ‘high volume’ of complaints appearing to suggest the ABC had hired a pro-Palestinian activist to present the talkback radio show. 

By the following day, she had received 23 complaints. 

‘We have all of these complaints coming in about Antoinette Lattouf. What are we doing about it?’ she asked Mr Anderson at a meeting. 

Ms Buttrose again pressed Mr Anderson that evening, asking whether the radio host had been replaced. 

The managing director wrote back, saying there would be a ‘managed exit’ and that Lattouf would finish on Friday as planned. 

In her affidavit, Ms Buttrose wrote that she understood Mr Anderson and other senior managers had decided to keep the freelance presenter on despite the complaints.

‘I accepted that Mr Anderson and his staff had the exclusive responsibility for making and implementing this decision,’ she wrote.

‘However, I wanted to challenge that decision.’

This challenge was done in an email about 10pm on December 19.

‘I have a whole clutch more of complaints. Why can’t she come down with flu? Or COVID. Or a stomach upset?’ she wrote.

‘We owe her nothing, we are copping criticism because she wasn’t honest when she was appointed.’

The following day, Mr Anderson pushed back, noting the consequences of prematurely pulling Lattouf off air.

‘If we do remove her, there will be claims of doing so without cause given her position on the Middle East was widely known prior to her engagement, we have caved to pro-Israeli lobbying, and she hasn’t actually breached impartiality this week,’ he wrote.

Ms Buttrose says she then accepted Mr Anderson’s decision to retain Lattouf as final.

‘Thanks for the explanation, David – it must be Christmas,’ she wrote back.

The affidavit also reveals that Ms Buttrose, despite her senior role in the ABC, personally responded to 26 complaints sent about Lattouf, and sent six emails to then-ABC content chief Chris Oliver-Taylor who had been tasked to deal with the issue.

In her testimony, Ms Buttrose denied being antagonistic towards Lattouf or using her position to pressure those below her for the journalist’s removal.

She claimed the 41-year-old should never have been employed at the ABC because she was an activist.

The ABC has also argued that the casual fill-in host was not actually terminated, despite findings from the Fair Work Commission to the contrary.

Executives from the broadcaster recently revealed it had spent $1.1 million in taxpayer funds defending the case to date after its failed attempts to reach a settlement.