Why hasn’t BOP DHB dropped its prosecution against a Cardiac Physiologist? - by Kim Leighton

Ana Shaw worked at Bay of Plenty DHB from 2010 until her dismissal in early 2015, after she reported fraud to her managers. More than six years later, two personal grievances are to be heard over three days in the Employment Court in June. The first claim is for unjustified disadvantage (bullying), and the second for unjustified dismissal.

There are a number of reasons for the delay in getting Ms Shaw's claim to Court, too many to go into here, but the upcoming Employment Court hearing is a challenge to an ERA determination and that accounts for some of the delay.

Readers may wonder why we are reporting on Shaw v BOP DHB a month out from the hearing instead of waiting for the judgment.

Since December 2019 we have been reporting on a separate set of proceedings where BOP DHB have sued Ana Shaw back, for something that we are still trying to make sense of.

We are still unable to find a legal or factual basis to the DHB’s claim.

The DHB purports to be claiming money and costs awards that it must know Ms Shaw would be unable to pay, because it's common knowledge that she has been a retail worker for years. The reason it's common knowledge is that during 2017 and 2018 the then COO of the DHB was allegedly intimidating and harassing her at her new workplace – a Tauranga retail store - and that conduct has been publicised.

The basis of the DHB's claim is that Ms Shaw posted pictures of the then COO allegedly stalking her (he denies it was "stalking" but we have discussed this earlier) on her Facebook page. Her advocate at the time, Allan Halse, posted comments supporting her objections and wound up being a co-defendant. The DHB claims that Ms Shaw and Mr Halse breached directions of ERA Member Fitzgibbon not to comment on the DHB, and seeks a finding of "Contempt of Authority", a penalty, takedown orders, and costs, albeit in the Employment Court where both sets of proceedings have been transferred.

We’ll elaborate on our inability to find a factual or legal basis for the DHB’s claim: Ms Shaw posted pictures of her former boss allegedly stalking her, while she (and the COO) were waiting for a determination by the ERA, during which time she was not subject to any direction or order made by the ERA at all, valid or not.

However, the DHB’s claim against Ms Shaw was somehow bulldozed through as if she had been subject to some direction or order. Member Fitzgibbon then issued an order setting out how the DHB was to apply for an unprecedented finding of “contempt of authority” by Ms Shaw and her advocate. Over the next couple of years the legal and/or factual basis for this strange action got lost in the mists of time and Employment Court Judge Corkill made the decision to entertain the DHB’s claim. We understand that there will be a teleconference between counsel later this month.

We recognise this separate proceeding as a SLAPP (Strategic Litigation Against Public Participation). These are very rare in New Zealand, except in the employment tribunals, and we believe they are rare because they are profoundly damaging to both parties.

Where such an action is brought by a Crown Entity (as opposed to a company) at taxpayer expense, AND a tribunal or court is prepared to give its claim oxygen despite the lack of any clear legal basis, there is a risk that New Zealand could be brought into disrepute internationally.

Amazingly, despite the stalking and the SLAPP, the COO got promoted to CEO, and the ERA Member who issued directions (the substance of which we can’t make sense of) was promoted to District Court judge. As to whether there was trading in influence, we’ll wait for the findings of three Court of Appeal judges who are judicially reviewing the ERA and Employment Court in relation to this matter.

We don't know why the DHB persists with its taxpayer-funded claim for a finding of contempt along with an award of penalties and costs, when not only is the cupboard bare, but it threatens to damage itself as a potential employer of medical professionals considering working for the DHB.

Is it vindictiveness, a strange public sector version of “corporate narcissism”, or a desperate attempt to cover something up? We don’t know, but we hope to be able to bring you the answer by the end of 2021.

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