SHAW v BAY OF PLENTY DISTRICT HEALTH BOARD [2022] NZCA 241

SHAW v BAY OF PLENTY DISTRICT HEALTH BOARD [2022] NZCA 241 [13 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA101/2022[2022] NZCA 241BETWEEN ANA SHAWApplicantAND BAY OF PLENTY DISTRICT HEALTHBOARDRespondentCourt: French and Katz JJCounsel: S R Mitchell for ApplicantM B Beech for RespondentJudgment:(On the papers)13 June 2022 at 11:00amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] 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 theEmployment Court.11 Shaw v Bay of Plenty District Health Board [2022] NZEmpC 10 [Employment Court decision].[2] In his decision the Judge held that:(a) Ms Shaw had not raised a personal grievance for bullying and/orharassment 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 seriousmisconduct relating to patient privacy breaches.3Background[3] Ms Shaw was a cardiac physiologist employed by the DHB until heremployment was terminated on 27 March 2015.[4] Ms Shaw's claim of unjustified disadvantage was based on the allegation thatthe DHB had failed to provide her with a safe workplace, due to alleged bullyingand harassment. Ms Shaw claimed to have raised complaints repeatedly withmanagement and to have documented her concerns in her 2012 and 2013 performancereviews. Ms Shaw also claimed that she had raised her concerns twice by letter. Thefirst letter was sent in October 2014 by an employment advocate, Mr Single, onMs Shaw's behalf. Subsequently a further letter was sent in May 2015 by anemployment lawyer acting on Ms Shaw's behalf.[5] The October 2014 letter relates to a complaint prompted by an email dated29 July 2014 from Ms Shaw to her entire department. In that email Ms Shaw criticisedthe way in which records for a patient referral had been dealt with. Ms Shaw'smanager took exception to the fact that Ms Shaw's email was sent to all staff andcontained blocks of text in capital letters. We note that Ms Shaw was not responsiblefor supervising any staff.[6] Another staff member considered Ms Shaw's email to be offensive on the basisthat it implied that Ms Shaw was the only staff member who knew what she was doingwith this aspect of work. A decision was made to investigate this as a complaint.2 At [78].3 At [161].Ms Shaw provided a lengthy response in which she set out various allegations abouther working environment. She was asked to provide further information to supporther allegations. Ms Shaw provided a folder of information which contained asubstantial quantity of confidential patient information, collected over a period ofsome years. Some of the documents related to patients that Ms Shaw had beenclinically involved with, but others did not.[7] The manager who received the folder considered this development concerning.A revised investigation ensued, now focussing on Ms Shaw's alleged breach of patientprivacy. Several senior DHB staff members were involved, all of whom were of theview that patient privacy had been breached, and that this amounted to seriousmisconduct. Ultimately, the Chief Executive of the DHB met with Ms Shaw,following which he made the decision to terminate her employment.[8] Following her dismissal, Ms Shaw raised two personal grievances with theDHB — first, that she suffered an unjustified disadvantage arising from beingsubjected to bullying and harassment in the workplace and second, that her dismissalwas procedurally unfair and unwarranted.[9] The DHB did not accept either personal grievance, which led Ms Shaw to lodgea claim in the Employment Relations Authority (the ERA). The ERA made twodeterminations. The first was a preliminary determination which found that Ms Shawhad failed to raise the unjustified disadvantage claims within the 90-day periodrequired by the Act and that there were no exceptional circumstances warranting anextension.4 The second was a substantive determination which found that Ms Shawhad not been unjustifiably dismissed.5[10] Ms Shaw challenged those determinations in the Employment Court.Judge Smith held that the October 2014 letter was the first occasion on which therewas a statement made on Ms Shaw's behalf that she intended to raise a personal4 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.grievance with the DHB. The Judge found that the focus of that letter, however, wasto:6 challenge the investigation into the complaint against Ms Shaw as an over-reaction, and confined the personal grievance accordingly. It did not broachthe subject of the historical bullying and/or harassment complaint.[11] The Judge also found that the May 2015 letter from Ms Shaw's lawyer dealtwith allegations that were not recent and which also faced a timing issue under theAct.7[12] The Judge accordingly held that Ms Shaw had not raised a personal grievancefor 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[13] Ms Shaw now seeks leave to appeal. The right of appeal to this Court from adecision of the Employment Court is limited to appeals on questions of law and issubject 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 importanceor for any other reason, ought to be submitted for determination.9The proposed unjustified disadvantage appeal[14] The proposed question of law in the unjustified disadvantage appeal is:Did the Appellant raise the personal grievance prior to the letter fromMr Single in October 2014?6 Employment Court decision, above n 1, at [76].7 At [77].8 At [161].9 Employment Relations Act 2000, s 214(3).[15] Mr Mitchell, on behalf of Ms Shaw, advanced the following key arguments insupport of the contention that the Judge had erred in law in finding that Ms Shaw hadnot raised a personal grievance prior to October 2014:(a) The Judge had considered various communications betweenMs Shaw and the DHB in isolation rather than in totality, contrary tothe Employment Court's statement in Chief Executive of ManukauInstitute of Technology v Zivaljevic that it is the totality ofcommunications that the Court must take into account whendetermining whether a personal grievance was raised.10(b) The Judge erred in accepting a different statement in Zivaljevic as acorrect statement of the law and assessing the evidence against thatstandard. The relevant statement is that:11[t]he employer must know what it is responding to; it must begiven sufficient information to address the grievance.(c) The Judge failed to have regard to the fact that the process of raising agrievance was always intended to be informal and accessible, and noparticular formula of words need be used.12[16] On the "totality" issue, the Judge expressly referred to the statement inZivaljevic that where there has been a series of communications, the totality of themmight constitute raising a grievance, and accepted that proposition.13 The Judge thentraversed, in some detail, the specific communications Ms Shaw relied on, in threebroad categories, each relating to a discrete time period. These categories mirroredthe way that Ms Shaw's counsel had addressed the relevant evidence in hissubmissions at the hearing.1410 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 ofTrustees 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].13 Employment Court decision, above n 1, at [26]–[28].14 At [31]–[72].[17] In our view the Judge's approach was appropriate, in the circumstances of thiscase. Further, it can readily be inferred from the judgment, viewed as a whole, thatthere is no basis on which the Judge might reasonably have concluded that the totalityof the communications amounted to the raising of a grievance.[18] Similarly, the argument that the Judge expanded the test under s 114(2) beyondthe perimeters of the express wording of that provision, by requiring that the employermust know what it is responding to and must be given sufficient information to addressthe grievance, does not withstand scrutiny. The Judge's findings at [52] are said toillustrate this erroneous approach. That paragraph relates to comments Ms Shaw madein her 2012 performance review, in respect of which the Judge states:[52] While the comments were critical of the DHB and its department, theywere not couched in such a way that it should have been apparent that apersonal grievance was being raised. The comments were critical of anenvironment within the department, which is different from the complaint ascurrently expressed, that Ms Shaw was the subject of bullying and/orharassment. The information conveyed in the review was insufficient to drawto the DHB's attention circumstances which would have supported a claim ofa personal grievance on Ms Shaw's behalf.[19] Performance review documents will often involve a frank exchange of viewsbetween employer and employee. However, not every criticism of an employer, or theculture within a workplace, will obviously constitute a personal grievance. Here, theJudge found that it was not apparent from Ms Shaw's comments in her review that apersonal grievance was being raised at all. That (factual) finding was open to theJudge and does not, in our view, constitute an error of law. After all, s 114(2) requiresan employee to make, or take reasonable steps to make, the employer aware that theyallege a personal grievance that they want the employer to address. The Judge found,as a matter of fact, that Ms Shaw did not.[20] Similarly, the Judgment, read as a whole, does not support the contention thatthe Judge failed to appreciate that grievances may be raised informally, and that noparticular formula of words need be used. The Judge's issue was not with theinformality of the communications, but their substantive content.[21] In conclusion, there is considerable force in Mr Beech's submission, on behalfof the DHB, that the applicant is seeking to challenge the Judge's factual findings byattempting to "dress [them] up" as questions of law. Further, even if we were to acceptthat 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 areno doubt of considerable importance to Ms Shaw, that is not the test. This aspect ofthe proposed appeal does not raise any legal issues of general or public importancethat warrant determination by this Court.The proposed unjustified dismissal appeal[22] The question of law in the proposed unjustified dismissal appeal is:Was the dismissal justified applying the test in Section 103A(2), and Section103A(3)?[23] Section 103A of the Act provides:103A Test of justification(1) For the purposes of section 103(1)(a) and (b), the question of whethera dismissal or an action was justifiable must be determined, on anobjective basis, by applying the test in subsection (2).(2) The test is whether the employer's actions, and how the employeracted, were what a fair and reasonable employer could have done inall the circumstances at the time the dismissal or action occurred.(3) In applying the test in subsection (2), the Authority or the court mustconsider—(a) whether, having regard to the resources available to theemployer, the employer sufficiently investigated the allegationsagainst the employee before dismissing or taking action againstthe employee; and(b) whether the employer raised the concerns that the employer hadwith the employee before dismissing or taking action againstthe employee; and(c) whether the employer gave the employee a reasonableopportunity to respond to the employer's concerns beforedismissing or taking action against the employee; and(d) whether the employer genuinely considered the employee'sexplanation (if any) in relation to the allegations against theemployee before dismissing or taking action against theemployee.(4) In addition to the factors described in subsection (3), the Authority orthe court may consider any other factors it thinks appropriate.(5) The Authority or the court must not determine a dismissal or an actionto be unjustifiable under this section solely because of defects in theprocess followed by the employer if the defects were—(a) minor; and(b) did not result in the employee being treated unfairly.[24] Mr Mitchell submitted that the Employment Court "totally failed to considerthe 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 thetest in s 103A(2) is whether the employer's actions, and how the employer acted, werewhat a fair and reasonable employer could have done in all the circumstances at thetime 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 thatshe 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.[25] Again, there is force in the respondent's submission that this appears to be afactual issue "dress[ed] up" as a question of law. In any event, it is apparent from thejudgment, read as a whole, that the Judge did consider the context surrounding MsShaw's retention of patient records, including her explanations for her conduct. TheJudge was critical, however, of Ms Shaw's reasons for retaining the information andsaw this as putting her own interests ahead of those patients to whom she owed a dutyof confidentiality. The Judge found that the privacy needs of the patients outweighedother considerations. The Judge also noted that Ms Shaw had no explanation forretaining records relating to patients that she had no clinical involvement with.[26] Ms Shaw also wishes to challenge the Judge's finding that a properinvestigation was carried out by the DHB. This is arguably a challenge to a factualfinding, rather than a genuine question of law. In any event, the Judge clearly didexplore in some depth both the extent to which Ms Shaw was given a reasonableopportunity to respond to the allegations and the extent to which the DHB consideredher explanations in relation to the allegations. His conclusion that a properinvestigation was carried out appears to be one that was open to him on the evidence.[27] In conclusion, this aspect of the appeal does not raise any arguable question oflaw, let alone one of general and public importance so as to warrant an appeal to thisCourt. Ms Shaw is, in large part, seeking to challenge factual findings which havenow been made by both the ERA and the Employment Court. Further, the employmentissues raised by the proposed appeal are highly specific to the unique context of thiscase.Result[28] The application for leave to appeal is declined.[29] The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.Solicitors:Garry Pollak & Co, Auckland for ApplicantHolland Beckett Law, Tauranga for Respondent