A meeting between a cardiac physiologist and two managers on 22 January 2015 went sideways, with spectacular and bizarre consequences. Ana Shaw raised personal grievance claims that later played out in the Employment Relations Authority and Employment Court (similar to the UK’s ET and EAT) between late 2014 and 2022. The next step, if any, will be the United Nations. We understand her dismissal in March 2015 to be a whistleblower retaliation event. For context, the UK’s NHS is also notorious for its treatment of whistleblowers.
Two publicised documents indicate:
[114] Ms Shaw told the Authority that the threat [of dismissal and blacklisting if she didn’t stop complaining about bullying] was made by [Neil] McKelvie at a meeting she attended with him and [Nick] Cockroft on 22 January 2015. Mr [Kerry] Single was also at the meeting.
SHAW v BAY OF PLENTY DISTRICT HEALTH BOARD | Employment Relations Authority (era.govt.nz) - 7 December 2018
[4] Mr Halse, advocate for Ms Shaw, has explained that Mr Single’s evidence is needed because Ms Shaw’s case depends, significantly, on a conversation that took place on *21 January 2015. He was referring to a meeting that day attended by representatives of the DHB, Ms Shaw and Mr Single, as her representative. The claim to be made is that Mr Single spoke with DHB representatives privately during the meeting and, immediately afterwards, ceased acting for her…
* Editor’s note: we understand the meeting took place on 22 January 2015, one day later.
[7] Mr Single applied to set aside the summons…
[8] A notice of opposition to Mr Single’s application was filed for Ms Shaw…
2020-NZEmpC-146-Shaw-v-Bay-of-Plenty-DHB-Interlocutory-Judgment.pdf (employmentcourt.govt.nz) – 17 September 2020
Over the years Ana Shaw had a total of five representatives handling her personal grievance claims. The first four were obstructed in one way or another and the fifth did not call Kerry Single as a witness for some unknown reason. But the way Bay of Plenty District Health Board (BOP DHB) handled the first, Single, and the fourth, Allan Halse, was spectacular.
In late 2022 Single denied to me that he had been threatened by business manager Neil McKelvie and HR manager Nick Cockroft. An alternative explanation for his conduct might be bribery; we can’t think of anything else and Single has declined to explain further. His abrupt departure forced Shaw to find a new representative and bring them up to speed in a hurry. She found lawyer Helen Gilbert, who filed her grievance in the ERA. BOP DHB appointed Mark Beech, then at the firm Holland Beckett. Beech told Shaw he had “bottomless funds” from BOP DHB and would “bankrupt” her. ERA Member Anna Fitzgibbon agreed to run the grievance as two cases which created extra work for Gilbert and eventually burned out Shaw on costs.
By the time Halse started representing Shaw, in early 2017, two years had passed with no hearing date. In fact, the ERA Investigation Meeting took place in October 2018, 3.5 years after Shaw was dismissed. Halse, who like many advocates offered no-win-no-fee terms, is well known as an anti-bullying advocate, and not the kind of representative who would throw a client under a bus for a few grand. In other words, BOP DHB’s approach with Single would not work with Halse. So its approach was to ask Member Fitzgibbon to make orders to prevent Halse from doing his job, and create entrapment opportunities.
It worked, sort of. During 2018 Shaw said that then COO (later CEO) Peter Chandler was stalking her outside her retail workplace, Spotlight Tauranga. Shaw also participated in a Radio NZ interview in May 2018 (after which the stalking increased). Photographic evidence of the stalking was submitted to the ERA and the stalking stopped immediately. That was more than three years after her dismissal, with no date for a hearing at that stage.
Investigation: The suicides, sackings and stressed staff of Tauranga Hospital | RNZ News – 31 May 2018
In December 2018 Fitzgibbon dismissed Shaw’s claim and made a direction that initiated retaliatory proceedings, which we have previously called a SLAPP. BOP DHB (which was absorbed by Te Whatu Ora/Health NZ in mid-2022) applied for a finding that Halse, the company he operated at the time, and Shaw, had made “scandalous allegations” in contempt of the ERA, and imposition of a penalty and costs. In June 2020 Shaw’s lawyer Caroline Sawyer applied to have this claim, which had by then been removed to the Employment Court, struck out as being ultra vires. Sawyer also applied for a Judicial Review into the validity of the directions, but this produced some interesting results.
BOP DHB’s claim that Halse, his company and Shaw had been in contempt of the Authority had no details of what the contempt was supposed to be. Sawyer applied for an “Unless Order”, meaning the claim should be struck out “unless” BOP DHB provided a “plausible legal basis” for it. Judge Corkill allowed BOP DHB to amend its claim, which it did on 14 June 2022. But the Amended Statement of Claim still doesn’t explain how “contempt” might flow from the actions alleged, and Beech has declined to explain it.
Notwithstanding this, Judge Corkill declined the Unless Order and more recently declined an application to stay the proceedings.
So now we have supposed contempt proceedings, with no legal basis, one month short of their 5th birthday.
Shaw was recruited from South Africa for her job at Tauranga Hospital (BOP DHB). Losing a personal grievance claim for unjustified dismissal in those circumstances is certainly tough. But when five years of insulting, Orwellian retaliatory proceedings is added to the mix, that could be discouraging an unknown number of skilled migrants from accepting job offers here, as the National Business Review suggested in a paywalled February 2022 article. We also have a severe shortage of medical workers.
For our UK readers it may be worth noting that New Zealand has a new centre-right government which we believe will be less tolerant of wasteful spending. This ship of fools’ pet project has cost the New Zealand taxpayer more than $0.5M (£250,000) for the unexplained retaliatory proceedings alone. It also seems unlikely that these proceedings can retain the tacit approval of the powers that be.