Updated: Nov 17, 2021
Wikipedia defines a SLAPP (a vexatious type of counterclaim, or Strategic Lawsuit Against Public Participation) as proceedings “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. In the typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion...".
Background to BOP DHB v Shaw
Former cardiac physiologist and now retail worker Ana Shaw brought two personal grievance claims against Bay of Plenty District Health Board in 2015. In late 2018 the Employment Relations Authority (ERA) found against her and she quickly challenged that decision to the Employment Court where there was a three day hearing before Judge Smith in June 2021, but no decision as yet.
For those proceedings, Ms Shaw has been represented by Auckland lawyer Simon Mitchell since 2020 but previously had three other counsel.
The third representative was Hamilton advocate Allan Halse, who had to stand down when he became a likely witness.
So why did this employment case run for 6 – 7 years?
In 2017 and 2018 ERA Member Fitzgibbon issued directions against Ms Shaw’s then advocate Allan Halse; not to contact the DHB directly or comment publicly on the DHB (this being in the context of Mr Halse being a campaigner against workplace bullying who had reached out to the DHB’s Chief Operating Officer via LinkedIn).
Then in Nov-Dec 2018, the Employment Court notes:
 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.
 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 penalty and contempt application is what we refer to as a SLAPP. It is still causing delays, added legal costs and stress. While that may seem unethical, New Zealand does not have anti-SLAPP legislation.
Did the ERA act outside its jurisdiction?
Apart from a minor detail in that proceedings should not have been ex parte (without notice), Judge Corkill in the Employment Court held that the ERA had power to make those directions. However, he did not give any legal basis for that. A Judicial Review of the validity of the directions and of the Court’s order has been applied for, also yet to be resolved.
Below is the first direction (3 pages) by ERA Member Anna Fitzgibbon dated 23 May 2017, soon after Mr Halse picked up Ms Shaw’s personal grievance claims which due to delaying tactics were were already more than two years old. He believed he had a good relationship with the COO, hence his decision to reach out via LinkedIn.
Leaving aside the issue of the validity or otherwise of the ERA directions, the relevant facts are that Ms Shaw claims that in 2017 and 2018 before the SLAPP proceedings were brought, two officers of the DHB were stalking her and she managed to take photos of one of them outside her workplace at the time. We understand that the alleged stalking increased after Ms Shaw took part in a Radio New Zealand interview about bullying at the DHB (the stalking was not raised), but ceased as soon as the then COO was alerted to photographic evidence of the stalking by the DHB’s lawyer Mark Beech, But the Radio New Zealand interview seems to be what the Employment Court is prosecuting her for, from what the BOP DHB has filed.
In early 2019 the SLAPP proceeding was transferred from the ERA to the Employment Court.
There are now two separate proceedings. The personal grievance claims for unjustified disadvantage (while employed) and unjustified dismissal is being heard by Judge Smith. Judge Corkill is handling the SLAPP – the DHB’s claims against Ana Shaw,her then advocate Allan Halse and his company Culturesafe NZ Ltd. We understand there is an application to stay that proceeding because of the applications for appeal and Judicial Review, including before the Supreme Court. That should block the DHB from bulldozing its three year old “contempt of Authority” application through.
While Ms Shaw’s personal grievance claims, however protracted, are only moderately complex, the claim against Mr Halse and Ms Shaw is very complex and has entangled all parties – we described it as a zombie SLAPP in May and since then little has changed.
But what exactly is BOP DHB’s beef?
What have Allan Halse and Ana Shaw done that’s so terrible that Ms Shaw’s former employer wants them to be the first individuals in the 21 year history of the Employment Relations Act to be found in contempt of the Employment Relations Authority?
That has not really been explained to them, but from the public documents we’ll do our best.
We have no idea how many directions the ERA has issued in other cases to employees’ advocates in relation to public comments about the employer concerned, and contacting the senior officer directly as opposed to through its lawyer.
We also don’t know how many times there have been negotiations between managers and advocates direct, as opposed to through the employer’s lawyer, as happened in this case. We know that the DHB’s counsel Mark Beech was bypassed in 2017 by Allan Halse, but we also know that in late 2020 the former Chief Operating Officer, now the Chief Executive, bypassed that same lawyer by contacting Ms Shaw’s lawyer Mr Mitchell. And even before Mr Halse got involved, Ms Shaw’s previous representative Ms Gilbert was bypassed by the DHB by way of the COO attempting to get Ms Shaw into a meeting unrepresented. Notwithstanding the Employment Court confirming the validity of the first direction of the ERA, we find it incongruous.
That senior officer denies stalking, but even if he wasn’t, he would probably find it difficult to convince a judge that a reasonable person of average robustness did not hold legitimate concerns about her personal safety when he persistently turned up at, and behind, her new place of work, especially when she had reported fraud to her managers before being dismissed.
What were Ms Shaw’s options when the Chief Operating Officer kept turning up at her place of work (Spotlight) and intimidating her?
Complain to Police? He would just say she was a disgruntled ex-employee.
Complain to her counsel? Already done, stalking photos were filed in the ERA and later the Employment Court.
Publicity? Yep, done that too. Radio New Zealand, May 2017.
The stalking appeared to cease immediately, although we understand the COO has since contacted Spotlight’s Australian head office and even had the DHB’s lawyer contact Mr Halse asking permission to continue shopping there, which could be considered further harassment. We are also aware of an attempt to have the District Court stop Leighton Associates reporting on the matter, in mid-2020, but nothing came of it.
As to the internal fraud at the DHB that Ms Shaw had alleged during her last few months on the job, it took over six years for those allegations to make it into a courtroom. If this delay allowed someone to dodge a bullet, that’s clever.
But what’s not so clever is that, to dodge that bullet, the DHB has had to pursue proceedings in the ERA and the Employment Court, and it’s now in the Supreme Court.
This is exacerbated by the fact that the former COO is now the CEO.
2017 and 2018 are two years former ERA Member Fitzgibbon would almost certainly want to forget – in 2017 she also ordered a Wellington lawyer to pay two of her so-called superiors $3,750 each for disparaging them, and the resulting appeals cost the employer concerned around $500,000 in legal costs. That lawyer, Dr Caroline Sawyer, has gone on to defend Ms Shaw and Mr Halse against the SLAPP brought by the DHB, (while Simon Mitchell handles the personal grievance claims).
The BOP DHB has spent a similar amount on its lawyers (Mark Beech and Holland Beckett). That includes the money spent trying to have Ana Shaw “punished” for discussing bullying in the DHB and publicising photographs of the COO hanging around her new place of work.
And it’s still not clear how New Zealanders really can be “punished” for discussing or reporting wrongdoing by their bosses.