5 questions answered: Could the Kyle and Jackie O Show ride again?

Lawyer Michael Byrnes here answers five questions on Mumbrella’s mind after reading Kyle Sandilands’ open letter this week.

Sandilands has been suspended from presenting his radio show by employer ARN, which accuses him of “serious misconduct”. We’ve been over that ground before — what comes out of the letter when interpreted by an expert moves the case on:

• There is no hope for the Kyle and Jackie O Show … it is legally dead
• ARN can’t pay Sandilands to do nothing if he doesn’t want that
• Sandilands should be free to contact Henderson now because her contact is terminated
• The letter was doing dual service: both personal and legal

Byrnes is an experienced workplace relations lawyer and partner at Swaab. He is intimately familiar with Fair Work and the meanderings of the Supreme and Federal Courts (where this case is likely to end up if it proceeds) and has represented high profile media clients.

If both Kyle and Jackie agree to get the band back together and make themselves available to restart the show, what options do ARN have to stop them? 

Jackie’s contract (through her service company) has been terminated so she can’t simply walk back in and demand to be put on air even if she wanted to return with Kyle. Absent a new agreement with ARN, either through a commercial negotiation or as a settlement to any threatened or actual litigation, that can’t happen. If Kyle’s contract (through his service company) is terminated as well that might leave them free to negotiate with other networks as a team if they were so inclined, subject to any surviving post-engagement restraints in their contracts.

Could ARN be forced to host a show it doesn’t want?

Not the Kyle and Jackie O show, as her contract has been terminated,  but if it can’t terminate Kyle’s agreement he remains on the books and is entitled to be paid pursuant to his contract. Contracts for entertainers and broadcasters are also in a special class – they can argue they not only need to be paid but also allowed on air because it is to their detriment if they are kept away from the general public, diminishing their profile. There are limits to the extent to which talent can be “warehoused”.

In your experience (you observe a lot of clients) do people who have been through a serious professional rupture tend to reconcile? Have you seen that happen? 

It is not common, but it does happen. I have seen it happen even after very bitter, emotionally driven disputes. The entertainment world is replete with examples of duos who have fallen out with each other, including others from Australian radio. Some reconcile, others don’t – the time apart can be a reality check as to their individual standing.

How credible is Kyle’s claim that he was unable to contact Jackie? What legal fetters exist that could do that? 

I obviously don’t know If he was given that direction not to contact Jackie,  but it may well be true. Speaking generally, in contentious situations, particularly where there is a suggestion one employee may have mistreated another, employers may direct the party against whom an allegation has been made to not contact other staff, in particular the complainant. In an employment context that is generally regarded as a lawful and reasonable direction and one commonly applied. Kyle’s claim is at least theoretically credible.

What of Kyle’s other claims that he was silenced? And if he was silenced, is he therefore taking a legal risk in breaking that silence with this statement? 

Given Jackie O is no longer contracted to ARN it is likely he is free to contact her. As for other statements, he is presently subject to a suspension and so the extent to which he can make public statements will depend on the terms of that suspension. The statement he issued yesterday seemed to be a combination of the personal and legal and likely foreshadows the response he (or his lawyers on his behalf) will make to ARN denying he engaged in an act of “serious misconduct” and breached his services agreement.