In 2022, domestic media reported that cardiac physiologist Ana Shaw was unsuccessful with her personal grievance claims against Bay of Plenty District Health Board (BOP DHB), which dismissed her in March 2015. Her dismissal was a whistleblower retaliation event, and in the wake of the Letby verdict we note this is also a common occurrence in the UK’s National Health Service (NHS). The wrongdoing Shaw was reporting was perhaps less spectacular, but still important - alleged improper use of taxpayer funded resources for private work at Tauranga Hospital. Shaw had worked at the hospital since being headhunted from South Africa in 2010.
This case was unusual though, for two reasons.
1. Obstruction
It took 3.5 years for Shaw’s claims to be heard by the Employment Relations Authority (ERA, similar to the UK’s ET). The ERA dismissed Shaw’s claims in December 2018, and she challenged that determination to the Employment Court (similar to the EAT).
Before her dismissal, Shaw had complained about being unjustifiably disadvantaged. She had been represented by an employment advocate at a meeting on 21 January 2015, but her advocate betrayed her. Paragraph 4 of a 2020 Employment Court interlocutory decision says:
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. The evidence that Mr Single is expected to give, I understand, is about that discussion and its result, to support the pleadings of bullying and harassment.
… an agitated business manager demanded that Shaw’s advocate [Mr Single] meet him and the HR manager briefly outside. When the trio returned to the meeting room, the advocate immediately informed Shaw that he could no longer represent her, without giving a reason, although he agreed to stay until the end of the meeting. When we reached out to the advocate several months ago he denied having been threatened.
But the lawyer representing Shaw at the final (mid-2021) hearing in the Employment Court, did not call Single as a witness.
In February 2022 Judge Smith dismissed Ana Shaw’s claims, and the Court of Appeal and Supreme Court declined leave to appeal.
2. Stalking allegations, and retaliatory proceedings
During 2018, over several months before the October 2018 ERA hearing (investigation meeting), then Chief Operating Officer Peter Chandler was observed frequenting the rear car park and loading bay of the Spotlight retail store where Shaw was working at the time, not far from Tauranga Hospital. Business manager Neil McKelvie also attended the store. Shaw and her then colleague took several photos of Chandler loitering in the car park. Those photos were filed in the ERA via her then advocate Allan Halse, Shaw’s fourth representative.
The DHB’s lawyers, for reasons that are unclear, later filed the photographs of Chandler allegedly stalking Shaw in the Employment Court.
The allegations of stalking/intimidation/harassment have subsequently been acknowledged by the Employment Court. We are unaware of any publicised documents in which Chandler denies stalking – that would be difficult anyway given the photographic evidence filed by both sides. However, we are aware of a 2020 Brief of Evidence which included a complaint against Leighton Associates to NetSafe. For context, mainstream media did not pick up the story until early 2023.
Why do we care about the alleged stalking? Because soon after the alleged stalking was raised in the ERA proceedings, BOP DHB brought retaliatory proceedings, similar to a SLAPP but bogus, against Ana Shaw, her then advocate Allan Halse, and the company Halse operated at the time.
The legal basis for the DHB’s claim similarly remains unclear, four to five years after its inception. Shaw’s lawyer Caroline Sawyer attempted to get it thrown out in 2020, however, Judge Corkill allowed the DHB to amend its claim. A link to the DHB’s Amended Statement of Claim dated 14 June 2022 is here, and the legal basis to this is still unclear. Indeed, we would describe it as bogus.
Defence approach
Halse has been attempting to have the bogus retaliatory proceedings invalidated and/or judicially reviewed since 2020. But last week Judge Corkill, who is about to retire, declined an application to stay those proceedings, noting:
[46] ... It will be some months before a substantive hearing can be heard because it will likely take place over several days.
This regional matter has now gone national. In mid-2022 all 20 DHBs were consolidated into Te Whatu Ora / Health NZ, which has inherited these proceedings.
Reaction
Judge Corkill’s interlocutory decision appears to have emboldened Chandler, who engaged with us directly on the Facebook page of the Bay of Plenty Times. That was late on Saturday night and very early Sunday morning, NZDT. The post, along with the comments, disappeared the following day. We are not surprised, given what is known (but not widely reported) about the case.
A Bill to establish an Office of the Whistleblower has passed its second reading in the UK, which would provide for imprisonment of up to 18 months for whistleblower retaliators. Some Kiwi lawmakers who are aware of this case may also think that’s a good idea.