Radio network ARN is caught in a Catch 22 bind. Attempting to defend two competing legal claims from its former KIIS network breakfast program stars Kyle Sandilands and Jackie ‘O’ Henderson requires Olympics-worthy legal gymnastics.
In defending claims from Sandilands that his contract was illegally ripped up, ARN relies on the host’s allegedly abusive treatment towards his co-host Henderson.
But Henderson, who is also disputing ARN’s legal right to terminate her contract, is claiming she was the victim of workforce bullying by Sandilands, from which the company gave her insufficient protection.
The more ferociously ARN argues its allegations that Sandilands created a hostile working environment, the shakier its grounds in defending the claims made by Henderson.
Instead, ARN is saying it didn’t terminate Henderson’s contract because she complained about being systematically belittled, but that her being unable to work with Sandilands meant she couldn’t fulfil the terms of her contract (which ARN said was to produce the Kyle & Jackie O show.)
That seems to ignore the elephant in the room: the company’s duty to provide a safe working environment for its employees.
ARN seems to be relying in part on Henderson withdrawing an earlier complaint over Sandilands’ behaviour. But companies are obliged to take action against issues like harassment and bullying even if a complaint is not made.
What’s more, there is at least a suggestion in the legal documents filed before the court that the agreement between Henderson and the network could allow for a different, but mutually agreed, co-host to be used.
(Although it is difficult to imagine that Sandilands would have been all right with that, and ARN argues that Henderson’s refusal to work was not a temporary measure until an alternative co-host could be found or health and safety concerns addressed).
These court claims are worth a combined $160 million or more, and to lose the case could be existential for ARN, which is valued at just $88 million. It needs to win – or settle.
In signing a $200 million contract with the radio duo two years ago, the company took on a big risk. Even if Henderson and Sandilands’ professional relationship had remained intact, their value relied on continued strong ratings performance and support from advertisers (some of which were alienated by the show’s bawdy content).
For anyone who has undertaken the mandatory workplace health, safety and bullying modules, Sandilands’ treatment of Henderson, even that which has been captured on air, meets the problematic threshold.
Let’s just recap. The on-air blow-up came on February 20, when Sandilands accused Henderson of being “off with the fairies” over her interest in astrology and called her “almost unworkable”.
And then there are those behind-the-scenes moments.
For example, on September 10 last year, Sandilands is alleged to have said he had carried the show by himself for more than a year in remarks that were off-air but were filmed.
“Don’t f—ing bother coming back until you’ve got your f—ing shit together like a normal person,” Sandilands allegedly said, referring to Henderson. “I’ve been carrying the whole show for a f—ing year … I’m just left here with a limp dick in my hand.”
Sandilands has not denied these on-air and taped allegations but argues that his contract contains what amount to a “get out of jail free” clause. In other words, ARN has censors employed on the show, so Sandilands does not bear responsibility for the content they let through unless very specific circumstances are met.
ARN’s defence is that this exclusion clause relates to “material prepared or presented” by Kyle, that is, it is about content and editorial matters. The radio network says that workplace bullying is not a content issue and may occur whether or not it is captured in a broadcast.
ARN has long had to delicately balance what is – for some listeners – offensive content with the man’s clear ratings (and therefore revenue-generating) success.
In one on-air rant, Kyle called ARN’s senior executives “the c— suite”, mocked the company’s then-chief operating officer (who is now the CEO), and told listeners: “They have no control whatsoever over what we do on this show.”
But one must wonder whether Sandilands’ lawyers are looking forward to dealing with one particular outburst in which he declared “judges can shove it in their arse” when the matter is back in court on Friday.
Oops.
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