Tova O'Brien has no option but to bartend if contract clause enforced – lawyer

Wednesday, 19 January 2022

Broadcaster Tova O'Brien is asking the Employment Relations Authority to determine whether a three-month restraint of trade clause in her contract is fair.

Discovery NZ’s head of human resources has denied a restraint of trade clause against Tova O’Brien was designed to stop other talent leaving the broadcaster.

O’Brien, Newshub’s former political editor, has taken TV3 owner Discovery NZ to the Employment Relations Authority. She says a three-month restraint of trade clause in her contract is unfair, and she is asking the authority to determine whether it is necessary and reasonable.

O’Brien’s contract with Discovery ends next week, but the restraint of trade clause may delay her January 24 start with Mediaworks’ revamped breakfast radio station by three months.

Discovery NZ wants to enforce the restraint of trade. It is also asking the authority to issue a finding and penalty after O’Brien took part in a promotional video for Mediaworks while still on Discovery’s payroll.

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

Media company MediaWorks is selling its TV business - including Three. (Video first published in June 2020)

* Paul Henry back as the voice of rebranded Magic Talk station Today FM

On Wednesday, O’Brien's lawyer Charlotte Parkhill asked Discovery's HR manager Kylie Elsom to put herself in the journalist’s shoes.

She asked if part of the motivation behind enforcing the restraint of trade clause was to dissuade others from leaving.

Elsom denied that was the case. She said the three-month restraint would help O’Brien's replacement Jenna Lynch to “embed contacts” and settle into her new position.

Parkhill said O’Brien “can't work anywhere other than a bar. Tova can’t see, and I can’t see, how that’s going to benefit Jenna”.

O’Brien told the hearing on Tuesday she and Lynch were close friends and Lynch was a perfect fit for the new job. She described her a fearless and forensic journalist who was more than capable.

Earlier, the two-day hearing in Auckland, before authority member Maria Urlich, was adjourned following a discussion between lawyers.

Part of that discussion happened behind closed doors after Parkhill told the authority she would like to call Mark Jennings, the former TV3 news chief.

Discovery was about to begin calling its witnesses, including media commentator and former New Zealand Herald editor-in-chief Dr Gavin Ellis.

Ellis is expected to give evidence on the competitive nature between television and radio on Tuesday afternoon.

On Tuesday, O’Brien said she believed no such competition existed.

She said she felt like the clause was being used to punish her.

“It feels like there’s a scrap between Discovery and Mediaworks … and I’m being caught up in that.”

She told Urlich she received assurances from the head of news that the restraint of trade clause only covered like-for-like roles before taking up her role as political editor at Newshub.

O’Brien said if she had known the clause would stop her doing “the only thing I know how to do”, she would not have signed.

“By and large, you’ll be saying to every journalist that you’ll never be able to progress your career and go to another employer without a three-month gap.”

O’Brien said she was going from a role as political editor to covering everything, including “ducks falling in love with kittens”.

Mediaworks’ director of news Dallas Gurney is O’Brien’s new boss.

He confirmed to the hearing that the new station considered Radio New Zealand’s Morning Report and ZB’s breakfast show as its main competitors.

He said the authority’s decision would be treated as a “precedent” by the industry and could be a factor in the decision-making of prospective employees.