An employment lawyer says ARN Media may have “prematurely” cancelled The Kyle and Jackie O Show for “opportunistic” reasons.
The network terminated Kyle Sandilands’s $100 million contract with radio station KIIS FM last week after giving him 14 days to remedy “an act of serious misconduct” in breach of his terms of employment.
It followed a seven-minute on-air argument between him and co-host Jackie “O” Henderson on February 20, during which he stated she was “off with the fairies” and her fixation with horoscopes made her “almost unworkable”.
In a statement on Monday to the ASX, ARN Media confirmed Sandilands had launched legal action against the network through the Federal Court, with his team claiming the termination of the contract was invalid and “unconscionable under the Australian Consumer Law”.
The statement read he is seeking “payment of whatever amounts are due and payable under the contracts at the time of judgement, and damages”.
ARN Media has disputed the claims and intends to defend the proceedings.
Sandilands has maintained he did not breach his contract and said he apologised to Henderson hours after.
We have not yet heard whether Henderson will also launch legal action, after ARN Media announced on March 3 she had “given notice she cannot continue to work with Mr Sandilands”, and that the network had terminated her $100 million contract.
Henderson has denied ever resigning or quitting.
Sandilands and Henderson are considering their options. (Facebook: The Kyle and Jackie O Show)
Sydney employment lawyer and partner at Hall and Wilcox, Fay Calderone, said Sandilands had “clearly stepped over the line and in effect berated Jackie”.
“I think in that context, it’s fair to say that there was a psychosocial hazard created,” she said.
“I think the fact that had this occurred in a boardroom or in a sales meeting or on a factory floor, we wouldn’t even be questioning whether it was a safety issue.”
Ms Calderone said ARN Media “took the right action” in “standing him down” as it had an obligation to provide a safe workplace, but may have jumped the gun in cancelling the program.
“I do think that the cancellation of the show seems premature on all fronts,” she said.
“I don’t want to be critical, but I do worry whether it was opportunistic because it just happened all too quickly in the context of something that was not completely unusual for this workplace and relationship.”
The duo had been expected to remain on air until at least 2034, as per their 10-year contracts.
Why terminate Sandilands now?
Kyle Sandilands says he did not breach his contract. (ABC News)
Ms Calderone said not much was known about the $100 million contracts Sandilands and Henderson signed in 2023, but they were considered contractors, and not employees, covered by workplace health and safety policies.
“The unfair dismissal laws don’t apply and the Fair Work Act sort of principles around those don’t apply,” she said.
Ms Calderone said if health and safety obligations were included in Sandilands’s contract, the network would need to prove he “breached his obligations” and the company’s “lawful and reasonable” policies.
Ms Calderone thinks the cancellation of The Kyle and Jackie O Show was potentially “opportunistic”. (Supplied: Fay Calderone/Jade)
But, she questioned why the network decided to terminate his contract now when he has acted in similar ways in the past.
The pair have often made headlines for their arguments and walk-outs.
“It is interesting that it is being pulled up at a time where perhaps it’s not so lucrative for the network,” she said.
“So, you know, cynically, I’d say it was opportunistic.”Sandilands insists he is ‘not in breach’ of $100m contract
Ms Calderone said when workplace behaviour had been “tolerated or excused or, dare I say, even commercialised”, it could become “harder to draw the line” — an issue if legal action was to be taken.
“The question is, was it a serious safety issue in the context of the relationship, the program, the history, the previous incidents?” she said.
Australian Consumer Law will also play a role in Sandilands’s case, Ms Calderone said, as his lawyers mentioned an “unconscionable conduct” claim.
“That obviously ups-the-ante for ARN because they are penalty provisions and it’s an extra layer of claim and he’s seeking specific performance of the contract which I think complicates the situation a bit more,” she said.
“But I do wonder if it’s a leverage play.”
Henderson’s termination ‘peculiar’
Henderson says she did not resign. (Supplied)
Ms Calderone said in Henderson’s case, there are general protection provisions in the Fair Work Act that do apply if she were to pursue legal action.
“She’s someone that made a complaint, as I understand it, in relation to her work health and safety, which means she asserted a workplace right,” Ms Calderone said.
“[The] principle is you cannot lawfully take action or adverse action against a contractor because they have asserted a workplace right … I think that’s peculiar.”
The employment lawyer said if Henderson’s contract was terminated because of this, it could be problematic for the network.
“I did see some reports that they had offered her an alternate show, which I think she later denied, to the extent that that’s an attempt to mitigate any loss or damage and reduce the risk of a claim, perhaps,” she said.
Legal action could be lengthy
Sandilands and Henderson made headlines while at KIIS FM for their arguments. (AAP Image/Tracey Nearmy)
Partner at Axe Legal, Stefan Stojkovic, said if Sandilands or Henderson were wrongfully terminated, they could sue for damages.
If they did, the court would take into consideration the length of their contracts, what they would have earned, and any mitigation provisions.
“They’re not going to get $100 million and then work under a new contract for $100 million, if that makes sense,” he said.
Mr Stojkovic said any prospective legal action could take “two to three years” to resolve if there were no appeals.
“If both parties make a claim and the legal issues are overlapping and the facts are overlapping, then I wouldn’t be surprised if they’re both heard at the same time by the same judge,” he said.
“Otherwise, we’d be wasting a lot of court resources.
“I wouldn’t be surprised if they settle it out of court as well, if there’s a sensible settlement available to the parties.”