| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 168/09 |
| Hearing date | 19 Oct 2009 |
| Determination date | 03 November 2009 |
| Member | D Asher |
| Representation | G Davenport ; M Quigg |
| Location | Wellington |
| Parties | Plunket v Radio New Zealand Ltd |
| Summary | BREACH OF CONTRACT - Respondent prohibited applicant from secondary employment opportunities with two media outlets on basis of conflict of interest - Issues whether respondent entitled under terms and conditions of employment to fairly and reasonably determine what secondary employment applicant undertook - Applicant’s terms and conditions of employment initially set out in Letter of Appointment (“LoA”) - Respondent issued Editorial Policies document which included conflict of interest, associations with other media and secondary employment sections - Applicant joined EPMU and became covered by collective employment agreement (“CEA”) - CEA provided terms and conditions of employment in LoA survived - Applicant claimed respondent purporting to control his spare time, and curtail fundamental freedoms - Authority rejected claims - Found respondent had no interest in applicant’s spare time, rather concerned with secondary employment that could cause conflict of interest - Found words in LoA required applicant to put proposed secondary employment to respondent so respondent could determine likelihood of conflict of interest and manage risk - Found CEA did not change that obligation - Applicant claimed Editorial Policies appeared to be unilateral change to terms and conditions of employment - Authority found Editorial Policies did not alter or go beyond scope and reach of applicant’s original terms and conditions of employment - Found no evidence applicant subject to disparate, unfair or unreasonable treatment - Authority accepted respondent’s reasons for other employees being allowed secondary employment - Authority noted respondent had agreed to number of applicant’s secondary employment activities - Found coherent and objective reasons for declining secondary employment with other media outlets - Found no evidence of irrational or unfair decision making - Found no basis for Authority to upset respondent’s standards and exercise of discretion - Found respondent met statutory and contractual obligations to applicant - Authority rejected applicant’s claim in refusing some secondary employment opportunities respondent in breach of contractual obligation to promote applicant’s development - Authority found no breach of New Zealand Bill of Rights Act 1990 - Found subject to contractual undertakings applicant free to exercise right to freedom of expression other than by way of paid secondary employment where respondent determined was potential or real conflict of interest - Found freedom of expression should not be conflated or confused with applicant’s secondary employment potential derived from position with respondent - UNJUSTIFIED DISADVANTAGE - Authority found no evidence applicant unjustifiably disadvantaged by conversations with manager - Found no evidence applicant’s performance review ratings unfair or perverse - Radio Presenter |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | New Zealand Bill of Rights Act 1990 s14 |
| Cases Cited | Bagchi v The Chief Executive of the Inland Revenue Department unreported, Colgan CJ, 26 Sep 2008, AC 40/08;TISCO Ltd v Communication & Energy Workers [1993] 2 ERNZ 779 |
| Number of Pages | 10 |
| PDF File Link: | wa 168_09.pdf [pdf 35 KB] |