Two types of SLAPPing - Anna, we need to talk. By Karen Davis

Updated: Aug 28, 2020

What is a SLAPP? It’s a legal term originating from the US that’s not widely recognised in NZ – Strategic Lawsuit Against Public Participation. If Party A attempts to make a claim against a more powerful Party B, Party B uses its financial might to bring a cross claim against Party A which might be without merit but cripples Party A financially through the legal costs he/she incurs defending the cross claim. More on that shortly.

And then there’s bottom slapping, a form of sexual harassment. One particular ERA Member has had both types brought before her which is not surprising as all sorts of things can go wrong in an employment relationship. What is surprising is that Member’s determinations, in late 2014 and 2017. Without one of the 2017 determinations in particular, apparently Leighton Associates would not exist (long story).

Let’s start with the above photo from 2015.

L-R – Karen Hammond who was awarded $168,000 by the HRRT against NZCU Baywide for blacklisting via privacy breaches; Erin Anderson, a lawyer then with Whitfield Braun; Ella Newman, whose claim for sexual harassment that forced her out of her job was settled in a Judicial Settlement Hearing after a wayward ERA Determination; Allan Halse, director of a new company called Culturesafe NZ Ltd (Ms Hammond and Ms Newman were not his or Ms Anderson’s clients) and Donna Pokere-Phillips of BEET-it Solutions, like Mr Halse an anti workplace bullying advocate.

Ella Newman worked in a garden centre called The Plant Place for a couple of years and summarily resigned after one of many incidents of her boss Mr Sanson slapping her on the bottom. She then filed a claim in the ERA for sexual harassment and unjustified constructive dismissal.

First Ms Newman’s application for a non-publication order was declined:

Then her application claiming sexual harassment and constructive dismissal was dismissed:

And here comes the handsy boss’s costs claim of $5000, which insultingly includes a $500 uplift:

Fortunately that got sorted out; the determination was duly challenged to the Employment Court but the Judicial Settlement Hearing resulted in an agreement that Mr Sanson would pay Ms Newman $5000 compensation – this kept the matter out of Court.

We see an attempt at business reputation management there, which is not unexpected. But I’d love to know how that Judicial Settlement Hearing went down!

Let’s move on to the “legal” SLAPPs that came before the same ERA Member. Member Fitzgibbon was involved in two of these during 2017. The first drew attention from the public because she awarded $3750 kickbacks to two former managers of a former university employee and anonymised those employees to Mr X and Mr Y; that matter is currently under Judicial Review in the Court of Appeal.

The other SLAPP operation led to Member Tetitaha’s decision to remove two sets of proceedings between Ana Shaw and Bay of Plenty DHB to the Employment Court. There followed an interlocutory where Judge Corkill approved leave to file submissions eight days late:

Paragraph 3 says: [3] The Bay of Plenty District Health Board (the DHB) had placed an employment relationship problem before the Authority. It raised assertions that the defendants had breached certain directions and compliance orders made by the Authority. The DHB sought penalties, orders that the defendants be held in contempt of the Authority, an urgent takedown order in relation to certain social media posts, and costs on an indemnity basis.

The defendants (respondents) are Ana Shaw, her advocate Allan Halse and his company Culturesafe.

While waiting for a Determination on a claim of unjustified dismissal, Ms Shaw publicly alleged that her former manager was stalking her, including an interview with Radio NZ and supported by photographic evidence. That obviously caused embarrassment to the DHB and the stalking stopped. Even though the unjustified dismissal claim is unresolved, it must have been a relief that the stalking ceased!

But the publicity was a breach by Ms Shaw and Mr Halse of an earlier direction by the ERA; apparently the directions relating to the employment dispute were more important than Ms Shaw’s personal safety. Although another ERA Member removed the matters to the Employment Court, it was Member Fitzgibbon who gave the direction and entertained the DHB’s claim for penalties, indemnity costs and charges of Contempt of Authority. We’re not aware of any Contempt of Authority charges ever being laid since the ERA was established in 2000, because under this set of circumstances any ERA Member who imposed a Contempt charge could find themselves in Contempt of Parliament! In any event the Member may have retaliated against Ms Shaw by finding against her on her unjustified dismissal claim soon after. We hope to have more details in the coming weeks.

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