An Update on Bay Of Plenty DHB v Shaw - by Kim Leighton

Updated: Mar 28

Two Employment Court judges have made four decisions in relation to Bay of Plenty DHB and Ana Shaw’s claims against each other. These are only interlocutory decisions but they indicate that this messy dispute is still very much alive and we think it’s time for an update. - Judge Smith, 17 Sep - Judge Corkill, 22 Sep - Judge Smith, 22 Sep - Judge Corkill, 10 Dec

Ana Shaw has two personal grievances against BOP DHB where she worked as a cardiac physiologist, for unjustified disadvantage and unjustified dismissal. She had exposed fraud and was dismissed on a convenient pretence – a technical breach of confidentiality in the course of reporting the fraud to hospital managers.

Allan Halse was the advocate who took Ms Shaw’s claims to the ERA but no longer acts for her due to a conflict as per Paragraph 22 of Judge Smith’s 22 September decision:

[22] Mr Halse’s submissions concentrated on the need for him to be a witness and the conflict of interest that would arise if he also sought to represent Ms Shaw. He acknowledged that the Employment Court does not accept that a representative can perform dual roles; to appear as an advocate for a party and to be a witness. I agree...

During the ERA proceedings, and while waiting for Member Fitzgibbon’s determination, allegations of intimidation and harassment of Ms Shaw by the then COO (now CEO) of BOP DHB were made. Judge Corkill mentions this in Paragraph 31 of his 22 September decision:

[31] On 28 November 2018, further adverse comments were posted on the CultureSafe Facebook page. Ms Shaw said the COO of the DHB had tried to intimidate and harass her at work. Mr Halse said that what Ms Shaw was saying was true, as had been confirmed by both of them at the recent Authority hearing when he said these matters were placed on the record.

We had already reported on the intimidation and harassment in December 2019, but in more explicit terms.

A year earlier, in late November and early December 2018, two significant things had happened:

1. [NZEmpC149] [32] On 30 November 2018, the DHB filed an ex parte application for penalties, contempt orders and takedown orders against CultureSafe, Mr Halse and Ms Shaw. It was alleged that each were in breach of the directions made to that point by the Authority.

This refers to Facebook posts, in which Ms Shaw and her advocate Mr Halse had mentioned stalking and intimidation and had regarded Ms Shaw’s personal safety as taking priority over ERA Member Fitzgibbon’s directions (Ms Fitzgibbon’s power to make those directions are among several determinations now before the Court of Appeal for Judicial Review).

2. The following week, ERA Member Fitzgibbon dismissed Ms Shaw’s claims. That determination has been challenged to the Employment Court.

From there, the two matters have been slowly escalating and becoming more and more ridiculous, reflecting some desperation on the part of the DHB.

These matters now in the Employment Court and the Court of Appeal are not employment relationship problems per se but arose out of an attempt to silence a whisleblower. It has become increasingly embarrassing for BOP DHB, not because it is defending a large Personal Grievance claim, but because it has spent six figures in public money in an attempt to have the ERA and/or Employment Court punish that claimant and her advocate (both cash-strapped) for reporting stalking, or as Judge Corkill put it, intimidation and harassment. The purpose of a Strategic Lawsuit Against Public Participation (SLAPP) is to not to win, but to burn out the less powerful party through intimidation, stress and mounting legal costs.

A year ago after a careful assessment we published what Ms Shaw and Mr Halse had published earlier, in full knowledge of the proceedings against them. Our “Stalker” article has been viewed more than 2,000 times, yet we haven’t even been warned, let alone sued. With that aside, nobody appears to have taken a step back and assessed the validity of their actions in the context of their core function, to treat Bay of Plenty patients. Even though the DHB’s SLAPP against Ms Shaw and Mr Halse has backfired through adverse publicity and the likelihood of even more publicity, they’re still pressing on with it.

The most recent Interlocutory Judgement by Judge Corkill, 10 December, while otherwise unremarkable, hints at the desperation of the DHB. There are two Employment Court hearings scheduled; the SLAPP has been adjourned until 12 April. Counsel for BOP DHB opposed that adjournment, most likely wanting to rush the penalty phase through before the substantive hearing in early February, which would probably have sabotaged her claim. The judge said no.

We understand the reason for the adjournment is that the original ERA directions, which the DHB claim Ms Shaw and Mr Halse breached and for which it continues to seek a finding of Contempt of Authority and penalties, is before the Court of Appeal for Judicial Review. The basis of the Judicial Review, with BOP DHB being one of three employers involved, is for the Court of Appeal to consider whether the ERA had the power to make those directions in the first place, and whether the ERA has jurisdiction over third parties. The other two employer parties are Turuki Healthcare and a Waikato retirement community anonymised to RPW. There have only ever been three occasions where the ERA has enforced against a third party, and all of them have been against Allan Halse and his advocacy company CultureSafe NZ Ltd, with one or two former clients and one contractor being collateral damage. All three enforcement actions will be judicially reviewed, most likely in 2021.

Ana Shaw now has a new lawyer to handle her substantive claim because of Allan Halse’s conflict arising out of an expectation that he will be called as a witness. Meanwhile, Caroline Sawyer continues to defend both Ms Shaw and Mr Halse against the DHB’s claims against them. BOP DHB is represented by Christie McGregor (formerly Goodspeed) and Mark Beech for both sets of proceedings.

While we haven’t yet done a lot of research on this, we have noticed that skilled migrants who have been in New Zealand long enough to attain citizenship are disproportionately targeted with workplace bullying and blacklisting, probably because of the likelihood that they will return home, despite having NZ citizenship. Ana Shaw is from South Africa.

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