Bay of Plenty District Health Board managed to successfully defend a long-running personal grievance in the Employment Court, but that decision has been appealed to the Court of Appeal. We’ll report on that court’s decision in due course.
There are separate proceedings that remain in the Employment Court. Strange and quite likely bogus proceedings arising from Ana Shaw’s personal grievance claim have been before the Employment Court since ERA Member Tania Tetitaha sent it up in February 2019. Member Tetitaha’s “removal” determination is brief on the proceedings at that point.
“...Conduct of the respondents in breach of the rule of sub judice prior to determination of the substantive proceeding”.
The separation of powers between Parliament, government officials and the courts is the basis of a functioning democracy. So that it doesn’t interfere with the process of justice, Parliament agreed not to comment on matters before the courts, and that is the “sub judice rule”. There are other rules for the rest of us, which is that you cannot interfere with the process of justice by talking privately to a judge during a case, or intimidating a witness. It’s very surprising that photographic evidence of the then Chief Operating Officer “attending” Ana Shaw’s place of work during her employment case, which Judge Corkill referred to as “intimidation and harassment”, did not appear to influence Judge Smith’s treatment of her grievance.
In the DHB’s case against Shaw, Judge Corkill’s preliminary and interlocutory decisions did not explain what legal transgressions Shaw and one of her former representatives Allan Halse were alleged to have committed. Shaw and Halse recently sought a procedure called an "Unless Order” which would mean the Employment Court would strike out the proceedings in the event the DHB continue to fail to specify what Shaw and Halse are supposed to have done wrong.
One interlocutory decision from Judge Corkill in August 2021 says:
[20] Finally, I recognise that the grant of any order of stay will lead to delay in the resolution of the issues in this Court. But this factor is not straightforward either. On the one hand, the plaintiffs are entitled to have the present litigation resolved, since it has been on foot for some time. On the other hand, the issues are important insofar as they may impact on the defendants, being proceedings involving potential punitive outcomes.
Nine months later they are waiting for the Strikeout - Unless Order decision and the basis of the DHB’s “entitlement” is still unknown. There no other publicised decisions to link back to at this time, so we still don’t know if the DHB will ever establish a cause of action, or if Shaw and Halse will be told exactly what they’re defending.
Meanwhile, a legislative curveball has been thrown at the parties. In a few months the twenty DHBs will merge to become one entity, Health New Zealand. The reasons for this initiative are summed up as follows:
DHBs were set up 20 years ago to give communities a greater say in decision-making, but they have also created some barriers between areas. Over time, this has led to a focus on individual districts and not on what is best for New Zealand as a whole – creating variation and inequity between areas and populations. It has also led to complexity and duplication, with DHBs replicating functions such as procurement, IT systems and asset management that could be done more efficiently either nationally or regionally.
The transition should be complete some time in 2022. Where does that leave the BOP DHB v Shaw and Halse proceedings, which have cost BOP DHB around $300,000 over 3.5 years? Will the Chief Executive of the newly formed Health New Zealand be ecstatic to have inherited it, along with the Crown monitor who is looking into BOP DHB’s deficit?
Not likely! And that’s why BOP DHB CEO Pete Chandler and his legal team need to get cracking.
See also ERA Member Fuiava on Contempt of Authority - 24 July