Tova O’Brien goes to court in radio and TV jobs battle
The TV3 political editor had timed her resignation for a high-stakes launch of new talk radio Today FM this month – but the TV station’s lawyers are battling to delay her return to the airwaves.
Broadcaster Tova O’Brien is today taking her employer Discovery NZ to the Labor Relations Authority in an eleventh-hour legal bid to escape a three-month trade restriction clause.
At stake is his high-profile launch of a new MediaWorks radio breakfast show – the date has not been publicly confirmed, but is scheduled for this month.
It would steal the thunder from the return of TV3’s new AM Show, which isn’t due to air until February with its new lineup led by Melissa Chan-Green and Ryan Bridge.
And in question? If her new role as a radio host is materially similar to that of a political reporter, and if the new radio show competes with the TV show.
Somewhat perversely, until last month it was essentially the same show. Newshub political editor O’Brien appeared most weeks on the AM Show, which aired on both TV3 and Magic Talk radio. It was a legacy from when MediaWorks owned both TV and radio networks – but in September 2020 it sold the TV arm to US company Discovery and 15 months later the divorce was finalized .
New MediaWorks boss Cam Wallace announced in November last year that Magic Talk would be mothballed and replaced by Today FM under talk radio veteran Dallas Gurney – and proceeded to unveil a Discovery’s series of high profile hires. MediaWorks announced that O’Brien, Duncan Garner, Mark Richardson, Lloyd Burr and Wilhelmina Shrimpton would all host shows on the new radio station.
Thus, the Jobs hearing will serve a purpose beyond lining the pockets of lawyers: it will starkly distinguish the previously joint Discovery and MediaWork broadcast products, creating a new buzz around the breakfast shows when they will be back this year.
The likelihood of it setting a legal precedent is lower.
Contractual trade restriction clauses can be difficult to comply with; often employers use them more to send a message to their own employees that they can’t pass on to a competitor, taking with them the brand, intellectual property and customers that a company has invested in to grow.
To that extent, Discovery may have trouble convincing the Employment Relations Authority that O’Brien, hosting a radio show, will be doing work similar to that of a television political editor.
But MediaWorks also faces its own challenges in the legal hearing. He has to draw a fine line between communicating to potential radio listeners that he is a distinct new competitor in the media market, and assuring the Labor Relations Authority that it is not a competitor under O’Brien’s contract.
Neither O’Brien nor Discovery NZ were willing to comment ahead of the hearing. Discovery had no comment on employment issues, chief executive Glen Kyne said.
O’Brien has worked for TV3 and its former owner MediaWorks since 2007, working in London as the broadcaster’s European correspondent and more recently in Wellington as a political editor. She made international headlines when she ripped Advance NZ co-leader Jami-Lee Ross in a live interview about backing conspiracy theories during his failed 2020 election campaign.
When she announced her resignation at the start of November last year, it was time for her to finish Discovery before Christmas, take a month off and then finish her contract just in time for the launch of Today FM at the end of this month. That was until Discovery told her that she would seek to enforce the three-month hold clause in her contract.
The Employment Relations Authority hearing comes after mediation failed.
In at least one respect, O’Brien is following a centuries-old tradition of moderating the commercial battle.
In 2016, Hilary Barry delayed her move from TV3 to TVNZ’s Breakfast, due to a trade restriction clause in her contract with MediaWorks.
But 15 years earlier, in 2001, Mike McRoberts (his eventual TV3 Evening News co-host) had successfully won a Labor Relations Authority case, freeing him from a TVNZ trade restriction clause. that the public broadcaster had tried to apply to delay its transition to TV3.
And former broadcaster Sean Plunket has made limiting commercial battles his trademark, fighting his first battle when he left TV3 for Radio NZ in 1996, to host morning reportt.
And then he took unsuccessful action 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 said RNZ had the right to decide whether Plunket’s activities could be considered an “actual or potential” conflict of interest.
RNZ had accepted 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 preventing him from appearing on TVNZ and writing for Metro were “on the face of it consistent and objective”, found the authority.
Plunket left a talkback role at Magic Talk a year ago after a series of complaints about broadcast standards. He is set to launch his own streaming radio channel at the end of next month, with fellow hosts Leanne Malcolm, Martin Devlin and Michael Laws, which he says is privately funded by “patriots”. And he too will return to the breakfast slot, with an eponymous show named Plunket not canceled.