The entity formerly known as Bay of Plenty DHB brought proceedings, as yet not fully explained, against its former cardiac physiologist Ana Shaw in December 2018. That wasn’t for any kind of malpractice or misconduct whilst employed, but for “act[ing] in a matter that obstructed, delayed and/or prejudiced the substantive proceedings, made scandalous allegations and breached the rule of sub judice”.
Unjustified disadvantage/dismissal claimed
The “substantive proceedings” referred to on Paragraph 13 of the DHB’s Amended Statement of Claim dated 14 June 2022, are two personal grievance claims Shaw brought against the DHB in 2015. Media reported that her claims in the Employment Court were unsuccessful and the Court of Appeal recently denied leave to appeal. In June Shaw was ordered, as the unsuccessful party, to pay $49,000 to the DHB as a contribution towards its costs as reported by the Herald. She’s subsisted on retail work since she was dismissed from the DHB and has no assets to speak of.
On 1 July 2022 all 20 District Health Boards were absorbed into Te Whatu Ora (Health New Zealand). The Bay of Plenty Times reported the disestablishment of the CEO’s position, held by Peter Chandler since mid-2020. Te Whata Ora therefore inherits these proceedings. We don’t know if Shaw will appeal the Court of Appeal’s refusal of leave to the Supreme Court, but regardless, the ”contempt” claims by the former DHB against her remain live.
Ana Shaw has been represented by two lawyers – Simon Mitchell in the personal grievance proceedings since late 2020, and Caroline Sawyer has defended her from the DHB’s “contempt” claims since early 2020.
Before Mitchell picked up Shaw’s claim, she was represented in the personal grievance proceedings by Hamilton advocate Allan Halse.
However, Halse is a co-defendant in the DHB’s “contempt” claim. Culturesafe NZ Ltd is/was also a co-defendant, but that company was placed in liquidation over a disputed penalty by Rangiura Trust Board (former employer of a Culturesafe client) on 1 August 2022. For about a year, Halse defended Shaw, along with himself and his company, from the DHB’s claims until Sawyer took over.
There has been an extensive attempt at judicial review of determinations and decisions of the Employment Relations of Authority (ERA) and the Employment Court, in relation to the “contempt” claim. The Court of Appeal effectively sent the application for judicial review of the ERA down to the Employment Court to review the directions of former ERA Member Anna Fitzgibbon and whether they were ultra vires (beyond the ERA’s power). Last week Judge Kathryn Beck struck it out.
Vexatious defence?
The latest decision striking out Halse’s application for judicial review noted that Halse’s action on this occasion was vexatious. Whilst it was his decision to apply for the review (which Shaw would have benefited from if successful), it was part of the overall defense to the DHB’s claims, and we are therefore surprised to learn there is apparently such a thing as a vexatious defendant.
BOP DHB’s claims
As previously mentioned, Ana Shaw’s former employer claims that she “acted in a matter that obstructed, delayed and/or prejudiced the substantive proceedings, made scandalous allegations and breached the rule of sub judice”. The DHB has applied to the Employment Court for a finding of contempt (of the ERA), a penalty and costs. While light on specifics, we believe that continuing these proceedings is quite risky, because:
There is no legal precedent for whatever it is the DHB is trying to achieve, so its lawyers must be trying to create a precedent and may have been surprised at Shaw and Halse’s rigorous defence.
Even after nearly four years the DHB has not really explained what the “contempt” is supposed to be.
In terms of media exposure, the DHB has got off lightly – so far. The strange nature of these proceedings, and the difficulty in explaining them to the public may have a lot to do with that, but how much longer can the DHB continue its claim without the glare of media?
We understand that the DHB supported its “contempt” claim by filing evidence of Shaw taking part in a Radio New Zealand interview in May 2018 about the DHB, called Suicides, sackings, claims of bullying at Tauranga Hospital, along with photographs of a former senior manager allegedly stalking her outside her place of work at the time, whilst her claim was before the ERA.
We don’t know of anyone previously being found in contempt of the ERA although two people probably came close; Chirag Ahuja (and/or his advocate) for sending a Black Power member to intimidate two former employees who had claims in the ERA for unpaid wages, and Matthew Biddle for failing to engage with with the ERA which eventually imposed around $113,000 in penalties and costs for a malicious act of sabotage. In these examples it’s easy enough to see how how the contempt (of authority) laws could have applied.
What’s the real reason for the proceedings?
Given the above examples, did Bay of Plenty really get its panties in a bunch over a sacked worker with a personal grievance claim contributing to a Radio NZ interview that almost certainly would have gone ahead without her? Unlikely. So let’s take another look at Paragraph 13 of the DHB’s Amended Statement of Claim – what were these “scandalous allegations” Ana Shaw made prior to December 2018?
Stalking, by the CEO no less! Peter Chandler was the COO back then. Pictures of him loitering outside the staff carpark at the back of Spotlight Tauranga, where Shaw worked at the time, were filed in the ERA, and the Employment Court, by both sides. We understand that Chandler denies stalking, and has provided eftpos transactions at a nearby cafe as evidence to support that denial. But that doesn’t explain why he repeatedly parked at the back of Spotlight, causing Shaw to feel threatened.
We thought about whether this could be a misunderstanding, with Chandler simply taking liberties, parking where he shouldn’t and risking an infringement notice (who hasn’t done that?) unaware that it was the current workplace of a former employee with a personal grievance claim in the ERA. But the $300,000 spent so far pursuing Shaw and her then advocate seems to point away from that theory.
Why go to so much trouble for Shaw?
Employment disputes happen and some are expensive. Most claims lodged in the ERA, which is part of the Ministry of Business, Innovation and Employment (MBIE) are referred back to mediation, also part of MBIE. It’s generally cheaper for claims to be settled confidentially in mediation, and the vast majority are.
As is quite common in whistleblowing situations, where employees such as Shaw have the misfortune of reporting wrongdoing to the wrong manager, threats were made. All attempts ro resolve the dispute in mediation failed, so there’s no non-disclosure agreement. The DHB’s efforts to cover up whatever wrongdoing Shaw had reported to her manager, using whatever legal mechanisms were available to it, however bogus, probably contributed to the DHB’s budget deficit, and have been burdensome for all parties.
Where to from here? Back to the Employment Court, and/or possibly the United Nations under the ICCPR (International Covenant on Civil and Political Rights). Thanks to the naked ambition of certain individuals working in employment law, Shaw, Halse and Chandler are going to be under increased pressure and we can’t predict how this will play out from here.