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Tova O'Brien goes to court in radio v TV employment tussle

TV3's political editor had timed her resignation for a high stakes launch of the new Today FM talk radio this month – but the television channel's lawyers are fighting to delay her return to the airwaves.

Broadcaster Tova O'Brien is taking her employer Discovery NZ to the Employment Relations Authority today in an eleventh hour legal bid to escape a three-month restraint of trade clause.

At stakes is her high-profile launch of a new MediaWorks radio breakfast show – the date hasn't been publicly confirmed, but is tipped for this month.

That would steal the thunder from the return of TV3's new-look AM show, which isn't expected back on air until February with its new line-up led by Melissa Chan-Green and Ryan Bridge.

And at issue? Whether her new role as a radio host is materially similar to that of a political journalist, and whether the new radio show competes with the TV show.

Somewhat perversely, until last month they were essentially the same show. Newshub's political editor O'Brien appeared most weeks on the AM Show, broadcast on both TV3 and Magic Talk radio. That was a legacy of when MediaWorks owned both the TV and radio networks – but in September 2020 it sold the TV arm to US-based Discovery and 15 months later the divorce was finalised.

The new MediaWorks boss Cam Wallace announced in November last year that Magic Talk would be mothballed and replaced with Today FM under the leadership of talk radio veteran Dallas Gurney – and proceeded to unveil a string of high profile hires from Discovery. MediaWorks announced O'Brien, Duncan Garner, Mark Richardson, Lloyd Burr and Wilhelmina Shrimpton would all host shows on the new radio station.

"We don't comment on employment matters." – Glen Kyne, Discovery NZ

So the employment hearing will serve one purpose beyond lining the lawyers' pockets: it will sharply distinguish between the previously conjoint Discovery and MediaWork broadcast products, creating a new buzz around breakfast broadcast shows when they return this year.

The likelihood of it setting any legal precedent is lower.

Contractual restraint of trade clauses can be hard to uphold; often employers use them more to send a message to their own employees that they can't jump ship to a competitor, taking with them the brand, intellectual property and customers that a company had invested to build up.

To that extent, Discovery may have an uphill battle convincing the Employment Relations Authority that O'Brien, in hosting a radio show, will be doing a similar job to that of a television political editor.

Since being appointed director of news and talk for MediaWorks NZ, Dallas Gurney has recruited Tova O'Brien and a line-up of other big names like Duncan Garner, Mark Richardson, Lloyd Burr and Wilhelmina Shrimpton. Photo montage: TodayFM/Newsroom

But MediaWorks, too, faces its own challenges in the legal hearing. It must tread a fine line between communicating to potential radio listeners that it is a distinct new competitor in the media market, and assuring the Employment Relations Authority that it is not a competitor under the terms of O'Brien's contract.

Neither O'Brien nor Discovery NZ was willing to comment ahead of the hearing. Discovery did not comment on employment matters, said chief executive Glen Kyne.

O'Brien has been with TV3 and its former owner MediaWorks since 2007, working in London as the broadcaster's Europe correspondent and most recently in Wellington as political editor. She made international headlines when she tore apart Advance NZ co-leader Jami-Lee Ross in a live interview about backing conspiracy theories in his failed 2020 election campaign.

When she announced her resignation at the start of November last year, it was timed so she could finish up with Discovery before Christmas, serve out a month's leave, then complete her contract just in time for the launch of Today FM at the end of this month. That was until Discovery told her it would seek to enforce the three-month restraint clause in her contract.

The Employment Relations Authority hearing comes after the failure of mediation.

In one respect, at least, O'Brien is following a time-honoured tradition in the restraint of trade battle.

In 2016, Hilary Barry delayed her move from TV3 to TVNZ's Breakfast show, because of a restraint of trade clause in her contract with MediaWorks. 

But 15 years earlier in 2001, Mike McRoberts (her eventual co-host on TV3's evening news) had successfully won an Employment Relations Authority case, releasing him from a TVNZ restraint of trade clause that the publicly-owned broadcaster had tried to enforce to delay his move to TV3.

Tova O'Brien made international headlines for a post-election interview in which she called Advance NZ leader Jami-Lee Ross a 'loser' and a 'narcissist'. 

And erstwhile broadcaster Sean Plunket has made restraint of trade battles his trademark, fighting his first one on his departure from TV3 to Radio NZ in 1996, to host Morning Report. 

And then he took an unsuccessful Employment Relations Authority case against Radio NZ in 2009, when the public broadcaster tried to stop him writing a monthly column for the magazine Metro.

Authority member Denis Asher found RNZ had the right to decide if Plunket's activities could be deemed an "actual or potential" conflict of interest.

RNZ had agreed to a number of secondary employment activities by Plunket, Asher found. Plunket had been told he was free to write a column for Metro, provided it was not a political column – but the radio network's reasons for barring him from appear on TVNZ and writing for Metro were "on their face, coherent and objective", the authority found.

Plunket left a talkback role at Magic Talk a year ago, after a string of broadcasting standards complaints. He is expected to launch his own streaming radio channel late next month, featuring fellow hosts Leanne Malcolm, Martin Devlin and Michael Laws, which he says is privately bankrolled by "patriots". And he too will return to the breakfast slot, with an eponymous show named Plunket Uncancelled.

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