Tova O'Brien loses restraint of trade case

Tova O'Brien is set to host the breakfast radio show for MediaWorks. Photo: supplied
Tova O'Brien is set to host the breakfast radio show for MediaWorks. Photo: supplied
Former TV3 political editor Tova O'Brien has lost her Employment Relations Authority case with her former workplace - and has been ordered to pay $2000.

O'Brien contested a restraint of trade clause in her contract with Discovery, which would prevent her from launching her new breakfast talk radio show at MediaWorks for three months.

The contractual clause is based on the notion that O'Brien is teaming up with a direct competitor of Discovery's Newshub.

The authority today ordered O'Brien to comply with modified terms of restraint of trade and to pay $2000 for "breaches of her employment agreement".

While O'Brien's restraint of trade period was for three months, the ERA member considering her case said it was appropriate to exercise their "discretion" and modify the duration of the three-month non-compete restraint by five weeks to seven weeks.

"For the sake of clarity the final day of the modified non-compete restraint is 14 March 2022," the ERA said.

The ERA said that evidence established that in her role with MediaWorks radio as the host of new Today FM show, O'Brien "will be working in competition with Discovery".

"Given the restraints as modified are reasonable and enforceable if Ms O'Brien commenced work with [MediaWorks Radio] on 25 January 2022 she will be in breach," the ERA said.

"Standing back, looking at that figure, including in comparison to other cases, I conclude that a fair penalty is $2,000. Ms O'Brien is ordered to pay a penalty to Discovery of $2,000 to compensate it for the inconvenience and resources expended in pursuing this matter. The penalty is to be paid within 21 days of the date of this determination," the authority said.

It was revealed last week O'Brien's transition to her new role at Mediaworks had hit a legal snag.

The journalist, who had been with Newshub for 14 years, argued to the ERA that her soon-to-be role as a breakfast radio host is not similar to her role as political editor on TV3.

She took the dispute to the ERA after mediation failed. A three-day hearing in Auckland which finished on Thursday.

O'Brien presented her final bulletin and Newshub's political editor on Friday.

In an emotional post shared to Instagram, O'Brien wrote, "Lots of tears today, happy and sad, as I sign off for the last time.

"It's the people that make the place. Thank you to my 3News/Newshub whānau for making the last fourteen years the best fourteen years."

Owner of Newshub, Discovery, said it is "archaic" to think that radio and television breakfast news shows are not in direct competition with one another.

Discovery argued that Newshub's The AM Show will compete for the same audiences and advertising dollars as O'Brien's new radio show with MediaWorks.

MediaWorks previously owned TV3 but sold its TV arm to Discovery in September 2020. Now O'Brien is jumping back to MediaWorks.

The launch date for her new radio show Today FM hasn't been confirmed but is rumoured to be this month. If so, it would coincide with the return of TV3's new AM Show, expected back on air in February.

O'Brien announced her resignation at the beginning of November last year in time to finish at Discovery before Christmas, take a month's leave, and finish out her contract in time for Today FM's launch by the end of this month. But then Discovery told her it would be enforcing the three-month restraint clause in her contract.

The hearing came after the failure of mediation between the parties.

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