ERA upholds gag on Plunket

The big case in the news this week was the decision in the case brought by Morning Report presenter Sean Plunket that in refusing to allow him to carry out certain other media work, his employer (Radio New Zealand) breached his rights under the New Zealand Bill of Rights Act 1990.

In September 2008, Radio NZ (RNZ) refused to allow Mr Plunket to host a TVNZ election debate, on the basis that there was a conflict of interest with regard to his work for RNZ. It subsequently refused approval for him to write a political column for a magazine. It later explained that he was free to write a column provided it was not a political one.

Mr Plunket then went to the Employment Relations Authority, claiming that RNZ was trying to control his spare time and curtail his fundamental freedoms.

The Authority rejected that argument, saying that RNZ was properly concerned about conflicts of interest. The Authority said Mr Plunket's contractual terms required him to discuss possible conflicts with his manager and obtain approval before going ahead with the activity concerned. According to the Authority, RNZ's reasons for declining his wish to appear for TVNZ and write for another media outlet were coherent and objective. They included the likelihood of change in audience perception of Mr Plunkett and Radio NZ, and potential consequences for listeners' loyalty.

The Authority rejected the suggestion that RNZ had breached Mr Plunket's rights under the NZ Bill of Rights Act. Freedom of expression was not to be confused with the possibility of secondary employment derived from Mr Plunket's involvement with Morning Report.

The Authority was clearly influenced by the fact that Mr Plunket would be taking up what was presumably paid secondary work, rather than simply exercising a right to comment on a one off issue on his own account. It said he was free to exercise his right to freedom of expression "other than by way of paid secondary employment where his primary employer has determined there are potential or real conflicts of interest".

It will be interesting to see how the Employment Court deals with this, if Mr Plunket decides to appeal. This was not a case of Mr Plunket actually commenting in the media in a way that conflicted with his RNZ position. It's difficult to see how, merely by hosting the TVNZ debate, he could be acting in a way that was inherently in conflict with his RNZ role. It is hardly unheard of for media professionals to work for different media outlets at the same time, whether it be the print or broadcasting media. Admittedly the political column may have been more likely to cause problems, however.

According to the Authority, RNZ had a contractual right to refuse consent for Mr Plunket to undertake outside work. The Authority said it was not its role to override RNZ's exercise of its discretion, particularly as there was no apparent unfairness or irrationality in RNZ's decision. It will be interesting to see whether the Employment Court agrees.

- Greg Cain

PICTURED: Sean Plunket. Photo / Herald on Sunday