I've written in this blog before about when those who make (or perhaps more accurately, read) the news, become the news.
Perhaps it is our fascination with those on television, or with the fourth estate, but it really is quite amazing how often those involved in the news become the news (think Susan Wood and John Hawkesby taking employment cases or on a less employment law related note, the Wendy Petrie 'first pump' incident and Alison Mau's alleged new relationship).
In any event, it has happened again, this time with Sean Plunket taking a case to the Employment Relations Authority, seeking to protect his right to perform work outside of his agreement with his now former (and I'll come to that shortly) employer, Radio New Zealand.
Sean Plunket will be a name familiar to many as a radio presenter on Radio New Zealand's Morning Report programme. At the heart of the issue was what else Mr Plunket was permitted to do and did other work give rise to secondary employment or a prohibited conflict of interest? In particular, Mr Plunket wanted to be able to write a column for Metro magazine.
Metro advertised Mr Plunket's agreement to do this as the appointment of a new political columnist. Radio New Zealand took the view that Mr Plunkett could write a column for the magazine, provided it was not a political column, due to its need for him to maintain political neutrality.
As an aside, Radio New Zealand also objected to Mr Plunket accepting the role without seeking approval in advance.
Radio New Zealand was ultimately successful in the Employment Relations Authority. The Authority rejected Mr Plunket's argument that his employer was purporting to curtail his free time and his fundamental freedoms (including free speech under the Bill of Rights Act 1990).
Instead, the Authority held that Radio New Zealand had no interest in Mr Plunket's spare time (in and of itself) but was properly concerned about secondary employment opportunities that may cause conflicts of interest.
The Authority looked at the contractual and policy requirements, together with Mr Plunket's public image and Radio New Zealand's statutorily prescribed role, and held that Radio New Zealand had in place appropriate contractual clauses and policy requirements that made it clear that Mr Plunket was required to put any proposed secondary employment to Radio New Zealand, so that it might measure the likelihood of any conflict of interest, and manage that risk.
Accordingly, Mr Plunket's claims were dismissed and Radio New Zealand was entitled to prevent him from taking up the role as Metro's political columnist.
However, as with all good news stories, this one does not end there - it comes with a twist. The Authority's decision was released on 3 November 2009. Earlier this week, the Herald ran the following story, 'Plunket leaves 'Morning Report' that reported that Sean Plunket was leaving Morning Report after details were leaked of a private deal which would allow him to write for Metro.
Mr Plunket is quoted as saying that he wasn't a morning person, but one suspects his reasons for moving on go well beyond him becoming tired (both literally and figuratively) of the early rises. Indeed, it appears far more likely that this is a case of Radio New Zealand winning the battle and losing the war.
Looking, as I like to do, at the application for employment relationships more broadly, the case is a reminder that the ongoing employment relationship needs to be a workable one. It is for that reason that while reinstatement is the primary remedy, it is limited to situations where it is practicable.
Practicable in these circumstances means that the parties can continue to work together productively.
It also reminds us that an employer is entitled to concern itself with potential conflicts of interest, and should have appropriate policies in place to ensure that issues such as potential conflicts of interest and secondary employment are covered and, as was discussed in last week's blog - the expectations are clear.
It isn't about interfering in an employee's private life, but ensuring that the employee's actions are consistent with the best interests of the employer.
The question has been asked, how much Radio New Zealand paid its employment lawyers to win the case in the Authority, only to back away from its victory and allow Mr Plunket to write for Metro?
It appears that question is pre-emptive and that both parties have agreed that the best thing is for Mr Plunket to write for Metro, but that his employment with Radio New Zealand will not continue. No doubt we will hear his dulcet tones elsewhere - indeed he is welcome to interview me about the employment law implications of his case!
Bridget Smith
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
