Conduct, complaints and contracts: Kyle and Jackie O’s legal battle like no other

Sandilands and Henderson had been under a combined $200 million contract with ARN to maintain their on-air partnership until 2034, having worked together for over 25 years. In ARN Media’s annual report, published on 31 March, chief executive Michael Stephenson referred to the successful nature of the Kyle and Jackie O Show, while referring to a future which seemed absent of both Henderson and Sandilands.

On 31 March, ARN Media confirmed via a statement to the ASX (Australian Stock Exchange) that Henderson – whose show aired on KIIS FM – had commenced a lawsuit against ARN Media that challenged her contract termination. She is claiming a minimum of $82 million in compensation.

On 20 February, Sandilands and Henderson had an on-air confrontation in which Sandilands made a number of pointed, personal accusations that left Henderson in tears, upon which she left the broadcast studio and refused to continue working with Sandilands. He was subsequently removed from broadcast on 3 March, at which point he was given two weeks to “remedy” the situation with Henderson. This didn’t eventuate, and his contract was terminated.

In a statement, ARN Media said Henderson sent a letter to its subsidiary, Commonwealth Broadcasting Corporation (licence holder for KISS 106.5 Sydney), claiming she had “made psychosocial health and safety and bullying complaints in relation to the conduct of Mr Sandilands”. Via her lawyers, Henderson claimed she did not resign.

Fay Calderone, Partner at Hall & Wilcox, has over 25 years’ experience in workplace law.

She says, “If this [on-air confrontation] had happened in a Zoom meeting, or a boardroom, or if it happened on a factory floor, then I don’t think we would second-guess the fact that it was a psychosocial incident, in the sense that Jackie was told she wasn’t doing a job, she was unworkable, she was off with the fairies.”

He also claimed she sounded like a drug addict, in the full knowledge that Henderson had previously attended rehabilitation for alcohol and drug concerns.

A statement of claim filed with the Federal Court by Henderson’s legal team refers to a letter sent to her employer on 26 February. “The Complaint Letter identified that Ms Henderson had an entitlement to the benefit of a workplace where safety risks (including psychosocial safety risks) were assessed, controlled, and otherwise eliminated or minimised to ensure the health and safety of Ms Henderson,” it states.

Henderson is pursuing an additional claim, alleging that terminating her contract after she’d made bullying complaints was both a contravention of the Fair Work Act, and the announcement to the ASX on 3 March included misleading and deceptive claims under the Australian Consumer Law.

Henderson provided evidence of a text message in which she’d claimed that she wanted Sandilands’ behaviour towards her addressed. “We are getting a lot of complaints from listeners, calling it an abusive relationship, women especially,” the text message read in part, according to the statement of claim.

Her lawyers say Henderson was prepared to keep working for the network without Sandilands, but her contract was terminated by ARN.

Henderson’s statement of claim points to 10 September 2025, as a pivotal point. In an on-air argument, Sandilands’ comments were “dumped” by a censor provided by the network. Subsequently, Henderson sent a message to Derek Bargwanna, the Head of the KIIS Network, saying that “[she] will not be spoken to the way [she] was (particularly off air)…”

Calderone says it’s important to note that neither Sandilands nor Henderson were employees, though she emphasises that she has not witnessed any contracts pertinent to this situation.

“As I understand the relationship, they have their own entities, and they would be key persons that are providing services via those entities. There has been a lot in the media about ‘unfair dismissal’. Unfair dismissal laws absolutely don’t apply, and that’s the least of ARN’s worries, frankly.”

Rather, work health and safety obligations are applicable to contractors in a workplace, which would impose obligations upon ARN to both Henderson and Sandilands and between the contractors.

Calderone says Henderson’s statement that listeners had provided feedback that characterised her as a victim within an abusive relationship may indicate “a hostile workplace created on the grounds of sex, which could have been a breach of the Respect at Work laws.

She’s referring to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth).

“Unless something emerges in the defence from ARN when they file it, and they haven’t commented on their defence in any of the media releases, that indicates they have done something about [Henderson’s complaints], then it seems like they haven’t done anything about it,” says Calderone.

She sees this as a work, health and safety issue from a risk management perspective.

“There’s been a safety complaint, there’s been an issue raised, and there is an obligation, of course, to control or eliminate so far as reasonably practicable, those psychosocial hazards in the workplace,” she says.

Those obligations apply to the person conducting business, and any directors and officers for work health and safety purposes can also be personally liable for failing to exercise due diligence around those work health and safety obligations.

Calderone adds, “From the Fair Work Act point of view, Henderson claims ARN terminated her engagement after she’d made these complaints [of bullying], which are characterised as an assertion of workplace rights. Under the Fair Work Act, it’s their responsibility to now establish that the fact that she’d asserted these workplace rights was not [a] substantive and operative reason for the termination of her engagement.”

If they can’t establish that it wasn’t a substantive and operative reason, “from a liability perspective, she gets through the gate”, according to Calderone.

Henderson’s former co-host attended the Federal Court in Sydney on 27 March to contend the termination of his contract, claiming $85 million in compensation. He told reporters that the end of his contract was “traumatic” and that he wished to return to radio broadcasting. He denied allegations of misconduct. His matter is expected to be heard in June. Sandilands’s barrister, Scott Robertson SC, sought expedition of the case, having told Justice Angus Stewart the “battlelines have really been drawn” in a series of letters between each side’s lawyers (according to ABC reporting).

Sandilands is essentially claiming that he was employed for his outspoken nature, and that the 20-minute outburst on 20 February that resulted in Henderson’s departure did not amount to misconduct. Robertson said their case would focus on the question of whether or not that 20 minutes on-air in contention involved serious misconduct for the purposes of a broadcasting services agreement.

The court heard that under the agreement, Mr Sandilands was “procured to engage in robust conduct”.

Calderone says, “It will be interesting to see the evidence play out, because if that sort of conduct was encouraged and procured by ARN, that is a problem when we’re talking about on-air conduct. His lawyers have alluded to a role he was playing and an expectation for him to play that role.”

She believes the on-air conflict that led to the termination was not manufactured.

“I think that interaction clearly wasn’t scripted, but if we consider that this persona was manufactured and encouraged, that is an issue to the extent that he has been encouraged to engage in actions that make it psychologically unsafe for those around him. If that’s the case, you’d have to assume Jackie understood that to be the brief. What I am more certain about is that this persona that he brought to the station was evident from the previous network. They benefited from it, and commercialised it, even if they didn’t ‘procure’ it.”

As reported by the ABC, Robertson told the court, “It was identified as something that the first respondent ‘desired’, it can’t possibly be misconduct of the kind that has been alleged.”

Sandilands’ lawyers are also pinning their case on a clause in the agreement which said that if something was broadcast and the company did not “press the dump button”, Sandilands had a relevant immunity.

The presenter told media outside the court that this on-air conflict was nothing unusual for the pair.

“She understands, we’ve had blow ups before. Her on me, me on her. We just get over it usually,” Sandilands said, as the ABC reported.

“I think this has all turned into quite a circus,” he said.

As reported by the AFR, which has seen correspondence between the legal teams of ARN and Sandilands, a letter sent by ARN’s lawyers, Herbert Smith Freehills Kramer partners Michael Gonski and Nerida Jessup, to Sandilands on 3 March read:  “You made abusive, humiliating, and belittling comments to, and about, Ms Henderson while on-air. This included attacks on Ms Henderson’s personal character, work ethic, and job performance, and accused her of having lost touch with reality.”

On 10 March, Sandilands’ lawyer, Johnson Winter Slattery partner Kevin Lynch, responded via letter that Sandilands’ conduct amounted to “robust” material befitting of his character, and that the four particular conditions required to end Sandilands’ contract had not been met. Five days later, on 15 March, ARN’s lawyers replied, listing 20 comments he made towards Henderson on 20 February that amounted to “serious abuse”. His behaviour, ARN added, went well beyond “presenting the program in a ‘robust character’.”

On 18 March, ARN terminated Sandilands’ contract via letter. It had paid him for the month and requested him to repay a portion of his contract. Further, the letter stated: “The board will consider whether to determine that the commencement shares should be forfeited.”

Mediation seems a long shot, since Henderson has expressed to ARN via court documents that she “cannot work with Mr Sandilands”, and that “direct contact with Mr Sandilands is now untenable”.

Calderone says the very public playing out of this workplace law case study between such high-profile personalities is a “trojan horse” in terms of raising awareness of company culture. The worst behaviour that is tolerated becomes ingrained in the culture, she warns.