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Ex hospital worker Ana Shaw’s appeal bid against former employer denied by Supreme Court

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Ana Shaw’s seven-year fight might now be over, after the Supreme Court dismissed her application for leave to appeal. Photo / Supplied

The Supreme Court has dismissed a bid by former Tauranga Hospital worker Ana Shaw to appeal an Employment Court decision linked to her job loss seven years ago.

Shaw wanted to appeal over her 2015 dismissal for serious misconduct and costs of almost $49,000 awarded against her, but the Supreme Court has declined her leave to do so.

It said Shaw’s application largely reprised the arguments already made, and that questions she wished to argue were those of fact rather than law.

Shaw was a cardiac physiologist at Tauranga Hospital from August 2010 before she was sacked for serious misconduct, namely that she breached patient privacy by collecting and keeping patient information.

Events began with an email Shaw sent to staff in her department in July 2014, complaining about the way patient records for referrals were dealt with.

A complaint about the email was investigated, at which time Shaw criticised the working environment at Bay of Plenty District Health Board, now Te Whatu Ora Hauora a Toi Bay of Plenty.

Ana Shaw has been fighting her dismissal from Tauranga Hospital since 2015. Photo / George Novak
Ana Shaw has been fighting her dismissal from Tauranga Hospital since 2015. Photo / George Novak

She had previously criticised the DHB’s work environment, including in her performance reviews in 2012 and 2015.

When asked to provide more information on the matter, she handed the investigator a folder containing a significant amount of confidential patient information dating back several years.

It sparked a new investigation into the potential breach of patient privacy, which was eventually found and Shaw was dismissed.

Shaw, who previously told Open Justice the confidential records had “never left the premises”, said she had done it to prove she was bullied and undermined at work.

She also said the documents were not patient files or clinical records, but specific cardiology test reports from which she had redacted patient identifications, leaving only the NHI numbers.

Shaw told media at the time she had immigrated to New Zealand from South Africa on the skills shortage list.

She described early on the difficulties she had in the workplace soon after starting, including that a colleague called her a “black lady” even though she is white, another described her as an “African wildebeest”, and a third told her to “go back to South Africa”.

Shaw has now fought her case through the Employment Relations Authority, the Employment Court, the Court of Appeal and the Supreme Court.

Ana Shaw's legal options are now limited after the Supreme Court dismissed her appeal bid. Photo / 123RF
Ana Shaw’s legal options are now limited after the Supreme Court dismissed her appeal bid. Photo / 123RF

Her legal fight began when she was unsuccessful in pursuing two personal grievances against the former DHB.

She alleged that she had suffered an unjustified disadvantage and had been unjustifiably dismissed. The Employment Relations Authority dismissed those claims.

Shaw then unsuccessfully challenged both determinations in the Employment Court and costs were awarded against her.

In June this year, her bid to appeal the Employment Court’s decision was turned down by the Court of Appeal, so she turned to the Supreme Court, which has now also denied her effort to appeal the almost $49,000 costs decision.

When approached by Open Justice about the latest outcome, Shaw did not want to comment.

The Supreme Court said in its decision of October 14 that Shaw had not identified any error of law in the Employment Court’s approach.

It said contrary to Shaw’s submissions, the Employment Court applied an orthodox approach to setting costs with a small uplift for wasted costs, and that it did consider her financial circumstances and access to justice issues.

It added a further $2500 to legal costs Shaw now owed Hauora a Toi Bay of Plenty, despite her argument she had “strained financial means”.

Shaw, who now worked in retail, stated earlier her only assets were household effects and a car of limited value. She had no savings or funds available to meet a costs order, and also had a substantial credit card debt.

With regard to Shaw’s application for leave to appeal against the substantive decision, the Supreme Court added that nothing Shaw raised suggested a risk of a miscarriage of justice.

“The case involved an orthodox application of the law to the facts,” the Supreme Court decision said.

“In any event, there is nothing about the circumstances that make them ‘exceptional’, and therefore justify this Court granting leave to appeal directly from an Employment Court decision.”



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