‘Serious misconduct’? The termination of Kyle’s contract and ACMA restrictions imposed
Last month an explosive argument occurred on the ‘Kyle and Jackie O Show’, heard by car radios across the country on KIIS FM. Jackie ‘O’ Henderson then released a statement saying she could no longer work with Kyle Sandilands. ARN, the owner of KIIS FM, then terminated the contract with Henderson before releasing a statement that the behaviour of Sandilands constituted ‘serious misconduct and a breach of ARN’s services agreement’. They gave Sandilands 14 days to remedy the situation or risk termination.
2 weeks later, the contract was terminated with Sandilands.
On the 18th March, Sandilands released a statement arguing that the termination was invalid. Henderson also released a statement that the termination of her contract was a shock, it was not her choice.
This calls into question whether their employment was wrongfully terminated. The contract in question is a $100 million deal for each of the co-hosts, for 10 years. If ARN loses, they face the risk of having to pay tens of millions of dollars in damages.
According to reg 1.07(2) of the Fair Work Regulations 2009, examples of serious misconduct include ‘wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment’ and ‘conduct that causes serious and imminent risk to…the reputation, viability or profitability of the employer's business’. ARN may be able to argue that the behaviour of Sandilands falls under this, by causing damage to the reputation of KIIS FM through his comments berating Henderson.
However, the actual definition is simply ‘serious misconduct has its ordinary meaning’. If this matter were to go to court, there would be a close examination of what exactly ‘serious misconduct’ means. It may be difficult for ARN to show that this specific event fell under their understanding of ‘serious misconduct’, given the show has a history of controversy and offensive segments, despite which the program stayed on air.
This month itself, the Australian Communications and Media Authority (ACMA) produced a report reciting all the problems with the ‘Kyle and Jackie O Show’ and setting out new conditions if ARN were to air the show.
The ACMA found that the network had repeatedly breached the decency clause of the commercial radio code of practice. In earlier years the ACMA has responded to the breaches by employing a second censor on the show, delivering and expanding code compliance training, conducting an independent assessment of controls and reporting progress twice a year to the ACMA. In the latest report, ACMA acknowledged that this made little difference.
New conditions were imposed, including:
1. Any program involving Sandilands or Henderson must comply with the decency standard
2. ARN must not broadcast content that is ‘highly offensive to an ordinary reasonable listener’
3. ARN is to commission an independent audit of its governance framework within 6 months
4. 3 months after the audit, the network is to provide the ACMA with a board approved plan to implement the auditor’s recommendations.
ARN challenged the second condition on the basis that it was ‘unreasonable’ and ‘inconsistent with the co-regulatory framework’.
This shows that the ARN has little desire to limit offensive conduct. With such standards, the question then remains as to whether the behaviour of Sandilands was enough to constitute a breach of contract.
Ultimately, time will tell whether Kyle Sandilands’ conduct can be objectively classified as “serious misconduct,” or whether the dismissal of both him and Jackie Henderson instead amounts to a costly breach of contract by the network.