Tamihere may have a case against Mediaworks - expert

Former RadioLive host John Tamihere. Photo / David White

Broadcaster John Tamihere may have a case against MediaWorks if he takes the company to court over his departure from RadioLive, an employment advocate says.

But the former Labour MP and radio host may first have to prove he was treated as an employee rather than a contractor.

Tamihere and his co-host Willie Jackson were stood down from their afternoon talk show last month amid mounting public pressure over their views on the RoastBusters scandal.

This week it was announced that Jackson will be back in 2014 with a show co-hosted by former Seven Sharp presenter Ali Mau, while Tamihere will not return.

Tamihere has since told Radio Waatea - of which he sits as a director along with Jackson - that he was planning legal action against his former employer.

"I'm telling you I will be litigating, again, with MediaWorks very shortly, so you can read all the salacious bits in the affidavits and in the emails," he told the station.

"It's interesting too at MediaWorks, it's a sisterhood running it and I'm just writing up my affidavit now and reflecting on it, it's amazing, it's back to the future with Helen and co."

MediaWorks refused to comment on the threat of legal action or the terms of Tamihere's contract.

Tamihere did not return requests for comment.

Employment law advocate, Danny Gelb, said that if Tamihere was hired as a contractor but treated as an employee he may be able to argue a stronger case under the law, using the Employment Relations Act.

"The fact that he's into affidavits straight away tends to suggest to me that it's essentially a contractual situation rather than employment," he said.

"It will all come down to what was written in the actual contract, and the interpretation of the contract, and applying the principles of contract law to it."

However, he also said that "even if he's a contractor he may be able to claim he's an employee".

Under legislation there are three tests to establish whether someone can be classed as an employee, based on the relationship with the company.

"[An] aspect of that is, are you able to subcontract your work out to a third party? But I can well imagine both those two [Tamihere and Jackson] wouldn't have the ability to say, 'hey I don't want to do my show this week, I tell what, I'm going to contract you out to do it instead of me'," said Mr Gelb.

"So on that aspect maybe that relationship is more like an employee. Look at the control aspect, they're on set hours and set times. But then again maybe they have other forms of income and that's not their sole occupation."

Similarly Tamihere may be able to argue MediaWorks treated him unfairly compared to Jackson.

"If it's an employment situation, an employer has an obligation to treat all employees equally," he said.

However, he said "nothing's ever black and white" and the bigger picture would need to be looked at.