Jackie O Told ARN 'Don't Worry About It' — Now It's In Court

[00:00:00]Well, there's been some developments in the court case between Jackie O. and her former employer, ARN.

[00:00:06]The owners of Kiss have filed their defense, accusing Jackie of using the bullying claim as a tactic to escape her multi-million dollar deal.

[00:00:13]As always, when it comes to workplace court cases, we turn to Michael Burns from Suave Michael, welcome back to McKnight tonight.

[00:00:21]Hello, Rob, good to be with you.

[00:00:23]Always great to have you here, sir.

[00:00:25]Now, this is an interesting defense from ARN.

[00:00:28]They're really taking no prisoners here, are they?

[00:00:32]No, they're not.

[00:00:32]It's certainly ops the anti.

[00:00:34]That's very true.

[00:00:35]The essence of it is this.

[00:00:38]And we can work through the finer detail, but the headline point is that they are asserting the complaints Jackie made.

[00:00:46]In her February 26th complaint letter, don't have protection, under the fair work act.

[00:00:54]And why?

[00:00:55]Because they were not done in good faith and for a proper purpose.

[00:01:00]Now, I have to say, and this will probably disappoint you, Rob.

[00:01:04]That is less dramatic than it sounds.

[00:01:07]It sounds like they're throwing Jackie under the bus or accusing her of some, you know, malfeas and something really wrong.

[00:01:16]It's a little less dramatic than it sounds for this reason.

[00:01:20]What they're saying is that when Jackie raised the prospect of making a complaint to the regulator, to the safety regulator, work safe, sorry, safe work, New South Wales, or a bullying complaint or commencing stop bullying proceedings before the fair work commission.

[00:01:39]Jackie really never intended to do any of that.

[00:01:43]Jack, it wasn't about that for Jackie.

[00:01:45]What it was about.

[00:01:47]Was her trying to, this is Arian's position to be clear.

[00:01:53]What it was about for Jackie, they say.

[00:01:55]Was her trying to avoid her obligations under the services agreement?

[00:02:00]And getting IRN, to allocate her a different shift, a different day part, as they call it.

[00:02:09]That was the motivation behind raising these issues.

[00:02:14]And there's a line of case authority that says that if you're not raising these issues for the employer, or in this case, the principal, IRN, to actually deal with, To receive, to, if need be, investigate, to redress, If you're doing it for some other purpose, that it's a matter raised, Not in good faith and for a proper purpose, and that is the language that's used, In the particular case authority, which is why they've used that verbal formulation.

[00:02:50]It's a very specific verbal formulation arising from the case law.

[00:02:54]So that's the background to it.

[00:02:55]It's interesting because in our many discussions about this court case, when it comes to Jackie, this has been a bit of a sticking and we talked about this, and to me, it is a fly in the ointment for Jackie, because let me go through this part of the defense from ARN, which dates, on 16th September 2025, Lauren Joyce sent an email to Gemma O'Neill, Ms. Henderson's manager, which said, this is a serious matter, and Jackie's well-being is our priority, and we are absolutely committed to upholding AR obligations under the Fair Work Act, and to making sure Jackie feels safe, supported, and respected, and invited Ms. Henderson to provide full details of the incident and her concerns.

[00:03:39]Now, the defense goes on to say, on 16 September 2025, Miss O'Neill sent an email to Ms. Joyce, which said that Jackie has already spoken and messaged with DB, Derek Braguana, about this particular incident, and on or about 8 December 2025, Ms. Henderson said to Mr. Boguana, words to the effect that no further action was required from ARN in relation to her complaint made through Ms. O'Neill on 15 September 2025.

[00:04:08]Since day dot.

[00:04:10]That part has always been a red flag for me, Michael.

[00:04:14]The fact Jackie essentially told ARN not to worry about it.

[00:04:18]That doesn't seem like the actions of someone who couldn't go on because of all this bullying.

[00:04:23]We talked about this.

[00:04:25]We did.

[00:04:26]bear in mind, in fairness to Jackie.

[00:04:28]That, the letter where she says she cannot continue working with Mr. Sandalins, and direct contact was untenable, was 26 February, after the 20 February incident.

[00:04:41]So, there are events that occur, including obviously relevantly, highly relevantly, the now famous infamous.

[00:04:48]Oh, I understand that.

[00:04:49]But if you're using historical messages where you've told, and you're complaining that ARN did nothing before these February 20 blow up.

[00:05:00]How can you say that when you have said to them, no, it's okay.

[00:05:04]I agree that that warrants some sort of explanation.

[00:05:08]Bear in mind at this stage, Jackie's side or camp have filed, as I understand, 4 affidavits.

[00:05:16]Clearly one of those is an affidavit from Gemma O'Neill because it's referred to.

[00:05:20]In this amended defense and relied upon.

[00:05:23]In this amended defense, seems there are 3 other affidavits as well.

[00:05:27]Those affidavits, unfortunately, have not yet been made public.

[00:05:33]And so one would think that this issue raised in IRN's defense is addressed in the evidence in some way.

[00:05:41]Some explanation is given as to why Jackie said that in early December, if indeed she concedes that she did say it.

[00:05:51]But I agree with you, Rob, that, uh, IRN had an opportunity to, or rather, Jack, you'd raise these issues, had wanted IRN to address, address them, uh, in 20, in 2025, uh, from arising from the August incident, September incident, and then for some reason, in early December, as you've identified, uh, seems to say, don't worry about it.

[00:06:16]And it's still unknown.

[00:06:19]It's a gap in our knowledge as to why that was the case.

[00:06:22]If indeed, it occurred.

[00:06:25]And by the way, with talent management, it's not unusual for talent to say, oh, I can't work with him anymore and then say, okay, do you want me to take it further?

[00:06:33]No, no, no, it's all right.

[00:06:34]you know, like they're having a moment.

[00:06:35]But here's where it gets worse because there's also a text message from Jackie to CEO Michael Stevenson saying that her manager Gemma had now had told her how amazing he had been.

[00:06:47]These are not the actions of someone who felt as though the company was acting wrong towards her, is it?

[00:06:51]And that I think is just after the 20 February incident, is it not?

[00:06:56]That's on, I think on the 21st from memory.

[00:06:58]Um, so, so you're right, Rob.

[00:07:00]There are some inconsistencies there.

[00:07:02]So, the position is that this 26, this 26 February letter is going to be absolutely central.

[00:07:09]to Jackie's case.

[00:07:11]You might recall that when we're talking about Carl's case, I said that that transcript of what occurred on 20 February would be examined like the Sabruda Zabruda film.

[00:07:22]In this instance, the 26 complaint letter.

[00:07:24]is going to be examined like the Zapruda film.

[00:07:28]For 2 reasons.

[00:07:29]One, bear in mind, IRNs, well, Jackie's main case, is a contractual case that a contract was wrongfully terminated.

[00:07:38]IRN's position is that that Jackie repudiated her contract.

[00:07:43]She evinced an intention to no longer be bound by the contract and did that in this 26th February letter.

[00:07:50]So, the letter is fundamental to the main game, which is the contractual claim, and then you've got this backup fair work act claim, and here Jackie is saying, well, I raised matters in relation to safety, the fact that I could make a complaint to the work health and safety regulator that I could bring, stop bullying, proceedings.

[00:08:13]Uh, these are workplace rights that I exercised, and my services agreement was terminated, because I exercise those workplace rights.

[00:08:22]What I are in a saying, among other things, in this amended defense is, well, that wasn't an exercise of workplace rights for the purpose of the Fairwork Act.

[00:08:32]You don't even get to 1st base in a way, because, in raising those matters.

[00:08:37]It was not done in good faith and for a proper purpose, as that is understood under the Fair Work Act.

[00:08:43]It was done for this collateral purpose, a strategic purpose, of trying to avoid providing the services under the agreement, and force ARN to allocate an alternative shift or day part to you, which ARN is not under a contractual obligation to do.

[00:09:02]Just bear in mind, Jackie has actually filed.

[00:09:05]This might be slightly frustrating, Rob.

[00:09:07]Jackie has filed an amended reply.

[00:09:11]So Jackie has responded to these matters.

[00:09:14]But here's the rub, unfortunately, hasn't been made public as yet.

[00:09:19]So when it is, we will be getting you in.

[00:09:22]I absolutely promise to do that if you want me, then we'll do that.

[00:09:26]That was last Friday and hasn't as yet been released.

[00:09:31]I suspect it will later in the week.

[00:09:33]Okay, before I let you go, just quickly, can you explain to me the loan agreement and claims of a breach?

[00:09:41]So the loan agreement, it's a limited recourse loan agreement that was given to Jackie upon commencement with ARN.

[00:09:48]It essentially, Rob boils down to this point.

[00:09:51]And this is not uncommon with these types of loan agreements.

[00:09:55]By the way, the loan agreement was for Jackie to acquire $3000000 of ARN shares.

[00:10:02]Um, and those shares were conditional.

[00:10:04]On certain things happening, her retention of those shares, and the line was conditional on her remaining with ARN.

[00:10:13]So, the main argument there, and it's a common one when it comes to incentive schemes, uh, or, uh, share loan agreements, where you're dealing with someone providing, in relation to someone providing services.

[00:10:29]The main issue here is, was Jackie what's called a, this is it at a very high level.

[00:10:34]Was Jackie what's called a good lever?

[00:10:37]Or a bad labor.

[00:10:39]And usually if someone is a good lever, then they get to keep the shares or they get to keep the equity or get a percentage of the incentive scheme, whatever it is, and I'm talking generally here.

[00:10:49]But if you're a bad lever, then it's forfeited.

[00:10:53]And ARN's position is that Jackie's a bad lever.

[00:10:56]Because she repudiated her services agreement, and IRN then validly, they say terminated.

[00:11:03]That services agreement.

[00:11:04]And so Jackie becomes a bad labor or not a good lever.

[00:11:10]And therefore, uh, forfeited the shares, and so the board resolved, That Jackie would lose those shares.

[00:11:17]She doesn't have to pay back the $3000000, but she doesn't get to keep the proceeds of the shares, that goes to, one would think, partially repaying that loan because, as I would understand, the IRN shares have gone down since they would have been given to her, pursuant to and under the terms of the, uh, the share loan agreement.

[00:11:39]Um, And and so, that's, that's what it's about.

[00:11:43]And of course, Jackie's side is saying, well, you wrongfully terminated the services agreement.

[00:11:49]So given you wrongfully terminated it, one of the losses that Jackie has suffered, is the loss of these shares, and she should be compensated for that.

[00:12:00]And she wasn't a, she was, she wasn't a bad lever.

[00:12:04]Uh, in fact, she was a, well, she shouldn't have been a lever at all, except that you terminated a services agreement, and you did so improperly, wrongfully, and so she should be compensated for the, for the loss of value of those shares.

[00:12:17]So that's it in a nutshell.

[00:12:19]It's a common issue that arises in executive terminations.

[00:12:25]Uh, uh, uh, uh, less so, of course, but presating there's a, a little twist in this case, which is, Jack is not an employee.

[00:12:32]She was someone providing her services through a services agreement.

[00:12:36]But where you're dealing with someone who is a high level worker, high level executive, they often have the benefit of incentive schemes, and this issue of whether they are a good lever or bad lever, arises, particularly where there is contention about the circumstances that led to the termination of their employment, or in this case, engagement, the services agreement.

[00:12:59]Gotcha.

[00:13:00]It's fascinating stuff, and unlike Carl, I think she's going to go all the way.

[00:13:03]I don't see a settlement inside.

[00:13:05]Oh, I think so too, Robin.

[00:13:07]I was reflecting on this, if I may note, if I may observe.

[00:13:09]I was reflecting on this on the weekend and thinking, if Jackie wanted, if Jackie wanted to settle this, this is obviously hypothesizing to a degree.

[00:13:21]But if Jackie wanted to settle this for, let's say, $12.1 million, which is essentially what Kyle got along with some other commercial bits and pieces.

[00:13:32]But if Jackie wanted to settle it for $12.100000, Surely, she would have approached them and said, look, I'm willing to settle for 12.100000 and they would have said, you know what, Jackie, sounds like a fair deal for us.

[00:13:46]Here's the check.

[00:13:48]a big difference.

[00:13:49]I might be wrong in that analysis, but no, not at all.

[00:13:53]I think you're right on the money.

[00:13:54]I think that that, to me, would make sense.

[00:13:56]If I was acting for Jackie, and Jackie said to me, um, I'll accept, look, Kyle got 12.09 million.

[00:14:03]I'd be happy to take that.

[00:14:05]I'd say, all right, we'll go to IRN.

[00:14:07]I'd be surprised if they would say no to that.

[00:14:09]And so one, the inference I'm drawing, and perhaps completely wrongly, and I hope not offensively, is that she would not be willing to settle for that and would be seeking more than that.

[00:14:21]I could have the wrong end of the stick.

[00:14:23]No, you're real... But it just seems to me logically that IRN would very likely be willing to settle for that amount.

[00:14:31]I would have thought that would be a pretty good deal, very good deal for IRN, and and Jackie would have a basis or a foundation, in a practical sense, to approach them, and to say, look, I'm just, I'm just after what Kyle got.

[00:14:44]If you pay that to me, we're done, not a cent more, not a cent less.

[00:14:47]You pay that to me, I'm gone as well.

[00:14:50]The big difference between Karl and Jackie O is that she has time?

[00:14:54]She's not tested to get back on air and she's got the money.

[00:14:57]She's got the money.

[00:14:58]She's got the savings to pay the lawyers.

[00:15:00]Michael Burns.

[00:15:01]It's always a pleasure from Swab.

[00:15:04]Thank you for joining us on midnight tonight.

[00:15:06]Thanks, Rob.