Shaw v Bay of Plenty District Health Board
[2022] NZCA 241
•13 June 2022 at 11:00am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA101/2022 [2022] NZCA 241 |
| BETWEEN | ANA SHAW |
| AND | BAY OF PLENTY DISTRICT HEALTH BOARD |
| Court: | French and Katz JJ |
Counsel: | S R Mitchell for Applicant |
Judgment: | 13 June 2022 at 11:00am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
Ana Shaw has applied under s 214 of the Employment Relations Act 2000 (the Act) for leave to bring an appeal against a decision of Judge Smith in the Employment Court.[1]
[1]Shaw v Bay of Plenty District Health Board [2022] NZEmpC 10 [Employment Court decision].
In his decision the Judge held that:
(a)Ms Shaw had not raised a personal grievance for bullying and/or harassment with her employer, the Bay of Plenty District Health Board (the DHB) within the 90-day time period allowed by the Act;[2] and
(b)Ms Shaw had been justifiably dismissed by the DHB for serious misconduct relating to patient privacy breaches.[3]
Background
[2]At [78].
[3]At [161].
Ms Shaw was a cardiac physiologist employed by the DHB until her employment was terminated on 27 March 2015.
Ms Shaw’s claim of unjustified disadvantage was based on the allegation that the DHB had failed to provide her with a safe workplace, due to alleged bullying and harassment. Ms Shaw claimed to have raised complaints repeatedly with management and to have documented her concerns in her 2012 and 2013 performance reviews. Ms Shaw also claimed that she had raised her concerns twice by letter. The first letter was sent in October 2014 by an employment advocate, Mr Single, on Ms Shaw’s behalf. Subsequently a further letter was sent in May 2015 by an employment lawyer acting on Ms Shaw’s behalf.
The October 2014 letter relates to a complaint prompted by an email dated 29 July 2014 from Ms Shaw to her entire department. In that email Ms Shaw criticised the way in which records for a patient referral had been dealt with. Ms Shaw’s manager took exception to the fact that Ms Shaw’s email was sent to all staff and contained blocks of text in capital letters. We note that Ms Shaw was not responsible for supervising any staff.
Another staff member considered Ms Shaw’s email to be offensive on the basis that it implied that Ms Shaw was the only staff member who knew what she was doing with this aspect of work. A decision was made to investigate this as a complaint. Ms Shaw provided a lengthy response in which she set out various allegations about her working environment. She was asked to provide further information to support her allegations. Ms Shaw provided a folder of information which contained a substantial quantity of confidential patient information, collected over a period of some years. Some of the documents related to patients that Ms Shaw had been clinically involved with, but others did not.
The manager who received the folder considered this development concerning. A revised investigation ensued, now focussing on Ms Shaw’s alleged breach of patient privacy. Several senior DHB staff members were involved, all of whom were of the view that patient privacy had been breached, and that this amounted to serious misconduct. Ultimately, the Chief Executive of the DHB met with Ms Shaw, following which he made the decision to terminate her employment.
Following her dismissal, Ms Shaw raised two personal grievances with the DHB — first, that she suffered an unjustified disadvantage arising from being subjected to bullying and harassment in the workplace and second, that her dismissal was procedurally unfair and unwarranted.
The DHB did not accept either personal grievance, which led Ms Shaw to lodge a claim in the Employment Relations Authority (the ERA). The ERA made two determinations. The first was a preliminary determination which found that Ms Shaw had failed to raise the unjustified disadvantage claims within the 90-day period required by the Act and that there were no exceptional circumstances warranting an extension.[4] The second was a substantive determination which found that Ms Shaw had not been unjustifiably dismissed.[5]
[4]Shaw v Bay of Plenty District Health Board [2017] NZERA Auckland 322.
[5]Shaw v Bay of Plenty District Health Board [2018] NZERA Auckland 390.
Ms Shaw challenged those determinations in the Employment Court. Judge Smith held that the October 2014 letter was the first occasion on which there was a statement made on Ms Shaw’s behalf that she intended to raise a personal grievance with the DHB. The Judge found that the focus of that letter, however, was to:[6]
… challenge the investigation into the complaint against Ms Shaw as an over-reaction, and confined the personal grievance accordingly. It did not broach the subject of the historical bullying and/or harassment complaint.
[6]Employment Court decision, above n 1, at [76].
The Judge also found that the May 2015 letter from Ms Shaw’s lawyer dealt with allegations that were not recent and which also faced a timing issue under the Act.[7]
[7]At [77].
The Judge accordingly held that Ms Shaw had not raised a personal grievance for bullying and/or harassment with the DHB within the time allowed by the Act. Further, the Judge determined that Ms Shaw was justifiably dismissed because, following the balancing of the breach of patient privacy against other considerations, it was open to a reasonable employer in the DHB’s position to dismiss her.[8]
[8]At [161].
Ms Shaw now seeks leave to appeal. The right of appeal to this Court from a decision of the Employment Court is limited to appeals on questions of law and is subject to a leave requirement. Leave may be granted if, in the opinion of this Court, the proposed question of law is one that by reason of its general or public importance or for any other reason, ought to be submitted for determination.[9]
The proposed unjustified disadvantage appeal
[9]Employment Relations Act 2000, s 214(3).
The proposed question of law in the unjustified disadvantage appeal is:
Did the Appellant raise the personal grievance prior to the letter from Mr Single in October 2014?
Mr Mitchell, on behalf of Ms Shaw, advanced the following key arguments in support of the contention that the Judge had erred in law in finding that Ms Shaw had not raised a personal grievance prior to October 2014:
(a)The Judge had considered various communications between Ms Shaw and the DHB in isolation rather than in totality, contrary to the Employment Court’s statement in Chief Executive of Manukau Institute of Technology v Zivaljevic that it is the totality of communications that the Court must take into account when determining whether a personal grievance was raised.[10]
(b)The Judge erred in accepting a different statement in Zivaljevic as a correct statement of the law and assessing the evidence against that standard. The relevant statement is that:[11]
[t]he employer must know what it is responding to; it must be given sufficient information to address the grievance.
(c)The Judge failed to have regard to the fact that the process of raising a grievance was always intended to be informal and accessible, and no particular formula of words need be used.[12]
[10]Chief Executive of Manukau Institute of Technology v Zivaljevic [2019] NZEmpC 132 at [36]; citing Liumaihetau v Altherm East Auckland Ltd [1994] ERNZ 958 (EmpC) at 963 and Board of Trustees of Te Kura Kaupapa Motukahe O Tawhiuau v Edmonds [2008] ERNZ 139 (EmpC) at [45]; and Idea Services Ltd (in stat man) v Barker [2012] NZEmpC 112, [2012] ERNZ 454 at [41].
[11]At [38].
[12]At [36]; citing Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC) at [36].
On the “totality” issue, the Judge expressly referred to the statement in Zivaljevic that where there has been a series of communications, the totality of them might constitute raising a grievance, and accepted that proposition.[13] The Judge then traversed, in some detail, the specific communications Ms Shaw relied on, in three broad categories, each relating to a discrete time period. These categories mirrored the way that Ms Shaw’s counsel had addressed the relevant evidence in his submissions at the hearing.[14]
[13]Employment Court decision, above n 1, at [26]–[28].
[14]At [31]–[72].
In our view the Judge’s approach was appropriate, in the circumstances of this case. Further, it can readily be inferred from the judgment, viewed as a whole, that there is no basis on which the Judge might reasonably have concluded that the totality of the communications amounted to the raising of a grievance.
Similarly, the argument that the Judge expanded the test under s 114(2) beyond the perimeters of the express wording of that provision, by requiring that the employer must know what it is responding to and must be given sufficient information to address the grievance, does not withstand scrutiny. The Judge’s findings at [52] are said to illustrate this erroneous approach. That paragraph relates to comments Ms Shaw made in her 2012 performance review, in respect of which the Judge states:
[52] While the comments were critical of the DHB and its department, they were not couched in such a way that it should have been apparent that a personal grievance was being raised. The comments were critical of an environment within the department, which is different from the complaint as currently expressed, that Ms Shaw was the subject of bullying and/or harassment. The information conveyed in the review was insufficient to draw to the DHB’s attention circumstances which would have supported a claim of a personal grievance on Ms Shaw's behalf.
Performance review documents will often involve a frank exchange of views between employer and employee. However, not every criticism of an employer, or the culture within a workplace, will obviously constitute a personal grievance. Here, the Judge found that it was not apparent from Ms Shaw’s comments in her review that a personal grievance was being raised at all. That (factual) finding was open to the Judge and does not, in our view, constitute an error of law. After all, s 114(2) requires an employee to make, or take reasonable steps to make, the employer aware that they allege a personal grievance that they want the employer to address. The Judge found, as a matter of fact, that Ms Shaw did not.
Similarly, the Judgment, read as a whole, does not support the contention that the Judge failed to appreciate that grievances may be raised informally, and that no particular formula of words need be used. The Judge’s issue was not with the informality of the communications, but their substantive content.
In conclusion, there is considerable force in Mr Beech’s submission, on behalf of the DHB, that the applicant is seeking to challenge the Judge’s factual findings by attempting to “dress [them] up” as questions of law. Further, even if we were to accept that some of the matters raised could properly be characterised as questions of law, they are not ones that merit consideration by this Court. While the issues raised are no doubt of considerable importance to Ms Shaw, that is not the test. This aspect of the proposed appeal does not raise any legal issues of general or public importance that warrant determination by this Court.
The proposed unjustified dismissal appeal
The question of law in the proposed unjustified dismissal appeal is:
Was the dismissal justified applying the test in Section 103A(2), and Section 103A(3)?
Section 103A of the Act provides:
103A Test of justification
(1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).
(2) The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
(3) In applying the test in subsection (2), the Authority or the court must consider—
(a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
(b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
(c) whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
(d) whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
(4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.
(5) The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—
(a) minor; and
(b) did not result in the employee being treated unfairly.
Mr Mitchell submitted that the Employment Court “totally failed to consider the full legal test for justifying a dismissal, instead focusing on whether the action[s] of [Ms Shaw] could amount to serious misconduct.” In particular, he noted that the test in s 103A(2) is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. He submitted that “all of the circumstances” must include the context in which Ms Shaw’s conduct occurred, namely that:
(a)the documents were retained by Ms Shaw to enable her to establish that she was being treated unfairly, or was being bullied; and
(b)the documents were provided to the DHB at the request of her manager, when she was asked to provide information to establish her claim.
Again, there is force in the respondent’s submission that this appears to be a factual issue “dress[ed] up” as a question of law. In any event, it is apparent from the judgment, read as a whole, that the Judge did consider the context surrounding Ms Shaw’s retention of patient records, including her explanations for her conduct. The Judge was critical, however, of Ms Shaw’s reasons for retaining the information and saw this as putting her own interests ahead of those patients to whom she owed a duty of confidentiality. The Judge found that the privacy needs of the patients outweighed other considerations. The Judge also noted that Ms Shaw had no explanation for retaining records relating to patients that she had no clinical involvement with.
Ms Shaw also wishes to challenge the Judge’s finding that a proper investigation was carried out by the DHB. This is arguably a challenge to a factual finding, rather than a genuine question of law. In any event, the Judge clearly did explore in some depth both the extent to which Ms Shaw was given a reasonable opportunity to respond to the allegations and the extent to which the DHB considered her explanations in relation to the allegations. His conclusion that a proper investigation was carried out appears to be one that was open to him on the evidence.
In conclusion, this aspect of the appeal does not raise any arguable question of law, let alone one of general and public importance so as to warrant an appeal to this Court. Ms Shaw is, in large part, seeking to challenge factual findings which have now been made by both the ERA and the Employment Court. Further, the employment issues raised by the proposed appeal are highly specific to the unique context of this case.
Result
The application for leave to appeal is declined.
The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.
Solicitors:
Garry Pollak & Co, Auckland for Applicant
Holland Beckett Law, Tauranga for Respondent
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