With the fallout over The Monthly slowly departing from the nation’s broadsheets, the battle could be about shift to the courtroom, with word reaching Crikey this morning that former editor Sally Warhaft has engaged Josh Bornstein of employment law specialists Maurice Blackburn to represent her.

Crikey contacted Bornstein, who confirmed that he had been engaged by Warhaft, but the high flying IR specialist refused to reveal what if any action Warhaft might take against her former employer Black Inc.

Warhaft famously departed The Monthly 12 days ago amid a spat over editorial control, with editorial board members, including chairman Robert Manne, recounting a breakdown in relations that reached boiling point over a decision to commission an essay by Peter Costello.

So far, Warhaft has maintained her silence. When asked last Friday whether she had entered into a confidentiality agreement with Black, Warhaft took the Fifth, telling ABC Melbourne radio host Jon Faine that, “I can say whatever I like, but I choose to say nothing. I have nothing to add.”

If such an agreement existed, say legal sources, it could form the basis for legal action.

Slater and Gordon Associate Chris Haan told Crikey that there were various aspects of the Warhaft’s case that could pique Bornstein’s interest. Her employment contract, in particular, will be heavily scrutinised, although this would probably turn up nothing.

“Most employment contracts are terminable on notice”, Haan said.

“Provided the employer pays the period of notice then they can terminate the contract for any reason. If her contract provided for 1 month’s notice, provided her employer paid it out, she would have no legal recourse under her contract.”

It remains unclear whether Warhaft was sacked or resigned.

Warhaft might be on firmer ground over issues of perceived sexism. A long-term observer of Melbourne journalism told Crikey last week that the departure could be traced to “two middle aged bores who can’t stand it when a smart young woman answers them back.”

“Depending on the facts, Sally may be able to claim that she was unlawfully terminated for reasons which included her s-x under the Workplace Relations Act,” Haan said.

If successful, Warharft would be able to claim maximum compensation of six months’ pay or $53,200 (whichever is lesser), and a maximum penalty of $10,000.

But both unlawful termination and s-x discrimination would be difficult to prove with Schwartz likely to claim that Warhaft was terminated because of disagreements about how The Monthly should be run.

Schwartz told Crikey as much last week: “There were issues with Sally. Sally was very difficult to work with. She was controlling, inflexible. She refused to discuss, that was the problem. She became brittle about it.”

Warhaft would be unable to claim any unfair dismissal right, because Blank Inc employs less than 100 workers.

Bornstein shot to fame during the MUA dispute on Melbourne’s waterfront, representing the union in its struggle against Patrick Stevedores and the Howard Government. He was recently portrayed working hand in glove with Julian Burnside in the ABC hit mini-series Bastard Boys.

The latest revelations come in the wake of another salvo fired yesterday by Black Inc Managing Director Chris Feik via The Monthly’s email alert list. In his new role as “Acting Editor”, Feik pointedly said that The Monthly was “surprised and gratified” to have been offered an essay by Prime Minister Kevin Rudd for publication, the specific wording suggested by Manne that had widened the rift with Warhaft.

“We thank her for her fine work and wish her well in the future. The Monthly will appoint a new editor soon and continue to make its unique contribution to Australian culture”, Feik added.

Peter Fray

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