As soon as she was removed by the ABC board on September 24, halfway through her five-year term, ousted ABC head Michelle Guthrie hinted she was considering legal action:
“While my contract permits the board to terminate my appointment without cause and with immediate effect, I believe there is no justification for the board to trigger that termination clause. I am considering my legal options.”
On Thursday afternoon, news broke that Guthrie was indeed proceeding with a claim against the ABC. Just what are her options?
Can Guthrie sue for unfair dismissal?
Despite the wording of the initial reporting, Guthrie simply cannot sue for unfair dismissal under the Fair Work Act. She makes too much money to be covered by the Act, which sets a high-income threshold, adjusted annually on July 1. If you earn over it, you’re exempted from the unfair dismissal provisions. This is currently $145,400, and Guthrie, who pulled down a fairly robust $900,000 per year, clears that comfortably.
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What about a claim of adverse action?
The other dismissal remedy that applies is a claim of adverse action — which isn’t subject to the threshold. This is a claim that an employee’s general rights at work have been breached. This largely revolves around discrimination; an employee can’t be disadvantaged (including being terminated) for discriminatory reasons based on, among other things, race, gender, religious or political views. In her public statements — not to mention the flurry of leaks — following Guthrie’s dismissal, there was no indication her dismissal was because of her race or gender. So unless something quite explosive awaits us during the case, it’s unlikely to be that.
But the general protections provisions extend further — and Guthrie is expected to rely on those, according to Fairfax. An employee is also protected from adverse action being taken against them after they have exercised a “workplace right” under the Act. A workplace right may include refusing unsafe work, engaging in lawful strike action or making a complaint.
This appears to be her best chance of success. Before her termination, Guthrie submitted a detailed account of her dealings with Milne to the ABC board. In this account, Guthrie complained about Milne’s attempts to get ABC political editor Andrew Probyn and economics correspondent Emma Alberici fired for pieces that had offended the government. Guthrie alleges Milne “yelled at” and “berated” her in response.
And unlike unfair dismissal (where the maximum payout available to a successful applicant is 26 weeks’ pay — quite a bit, in Guthrie’s case), the compensation that can be awarded is uncapped for adverse action. At the highest end, employees have been awarded over $1 million, and ominously for the ABC, Guthrie is reputedly after “millions”.