Former executive’s $400,000 damages claim against WIN TV highlights deceptive conduct perils for business

A former WIN Television executive is suing the company for $400,000 in damages, alleging the television network engaged in deceptive conduct.

Rodney Hockey says he was deceived into taking on a different role in the company after his position was made redundant, with the case highlighting a curious problem for businesses – deceptive conduct cases are notoriously difficult to prove.

TressCox Lawyers partner Nick Duggal says deceptive conduct cases in the employment area are very rare.

“Where an employee has been induced into entering into an employment relation… a claim can exist under consumer laws, but it needs to prove the employer was aware it was misleading at the time the relation was entered into,” Duggal says.

Hockey says he was misled into taking the alternate position when a redundancy package would have resulted in more money.

In February this year, Hockey was supposedly paid $199,405.85 by the network. But Hockey says this is significantly less than what he is entitled to.

The case is scheduled to be heard in the Federal Court later this month.

Hockey had been working with the regional network since 1985 when he started in Wollongong as a tape operator. In 2009, Hockey was appointed as Queensland and NSW general manager and worked closely with Andrew Gordon (son of owner Bruce Gordon).

His contract was not due to expire until September 13 this year, but in March 2011, Hockey was allegedly told by Andrew Gordon that WIN was being restructured and his position was being made redundant.

Following this, Gordon allegedly told Hockey he had three options: apply for the position of northern regional manager; apply for the position of WIN Network director/head of production; or cease employment with the company, in which case Gordon had agreed to pay the balance of Hockey’s term as a redundancy package.

Hockey says he accepted the position as network director of production but was told by Gordon if after at least six months he was not satisfied in his new position he would be able to then accept the redundancy package.

Duggal told SmartCompany the outcome will relate to whether this provision for a redundancy package was also in his contract or if it was only based on the verbal discussions.

“He entered into a fixed term contract which had an expiration date of September and Hockey is saying in those circumstances he was entitled to the redundancy package before taking on the new role.

“It will be interesting to see if the documents he entered into support his position on that, if they don’t it will be a challenge to prove the verbal conversations override the written terms,” he says.

Gordon allegedly confirmed Hockey would be paid his total remuneration for the balance of his term as a redundancy payment verbally and in writing, should Hockey be unsatisfied with his new position and quit his role after six months and before September 2013.

WIN disagrees saying it agreed to pay the remainder of the contract in line with tax regulations and consequently it would be unlawful to pay the remaining amount because his position was not made “genuinely redundant”.

SmartCompany contacted WIN Corporation but it was unable to comment prior to publication. The network’s counsel told SmartCompany owner Bruce Gordon was unable to comment.

Duggal says cases such as these can be difficult to prove.

“These cases are potentially arguable when employers give assurances based on the longevity of a position. If there aren’t reasonable grounds to make the representations at the time, and the employee incurs a loss as a result, potential claims do exist.”

“And when you’re talking about executives the amount of their loss can become very substantial, so employers do need to be careful to not make representations that cannot be substantiated,” he says.