ANA SHAW v BAY OF PLENTY DISTRICT HEALTH BOARD [2022] NZSC 117

ANA SHAW v BAY OF PLENTY DISTRICT HEALTH BOARD [2022] NZSC 117 [14 October 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 67/2022[2022] NZSC 117BETWEEN ANA SHAWApplicantAND BAY OF PLENTY DISTRICT HEALTHBOARDRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: S R Mitchell for ApplicantA P Pearce for RespondentJudgment: 14 October 2022JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B The application for leave to appeal is dismissed.C The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONS[1] The applicant, Ms Shaw, has applied out of time for leave to appeal againsttwo Employment Court judgments (a substantive judgment1 and a costs judgment2).1 Shaw v Bay of Plenty District Health Board [2022] NZEmpC 10 (Judge K G Smith)[NZEmpC judgment].2 Shaw v Bay of Plenty District Health Board [2022] NZEmpC 112 (Judge K G Smith)[NZEmpC costs judgment].Background[2] The Bay of Plenty District Health Board (the respondent, now called HealthNew Zealand) summarily dismissed Ms Shaw in March 2015 for serious misconducton the basis that she had breached patient privacy.3[3] In July 2014, Ms Shaw had sent an email to all the staff in her departmentcomplaining about the way patient records for referrals were dealt with.4 One of theemployees who received this email described it as offensive because it implied thatMs Shaw was the only employee who competently carried out this process.5 Therespondent decided to investigate this as a complaint.6[4] As part of this investigation process, Ms Shaw criticised the workingenvironment of the Bay of Plenty District Health Board (the DHB). She had criticisedthe DHB's work environment before, including in her performance reviews in 2012and 2015. When asked to provide more information on this matter, she handed theinvestigator a folder containing a significant amount of confidential patientinformation dating back several years.7[5] A new investigation began into the potential breach of patient privacy.Ms Shaw argued that she had collected this information as evidence of workplacebullying towards her, such as people interfering with her work.8[6] Several senior DHB staff found that there had been a breach of patient privacyin line with its Health Information Privacy Standards Policy.9 Ultimately, as notedabove, this led to the Chief Executive of the DHB summarily dismissing Ms Shaw.[7] Ms Shaw raised two personal grievances with the DHB for unjustifieddisadvantage (failure to provide a safe workplace free from bullying and harassment)and unjustified dismissal.3 NZEmpC judgment, above n 1, at [80].4 At [11].5 At [12].6 At [13].7 At [97]–[99].8 At [106] and [108].9 At [107], [109], [134] and [137].Judgments belowEmployment Relations Authority determinations[8] The Employment Relations Authority (the Authority) made two determinationson this matter.10 Regarding the claim for unjustified disadvantage, the Authority foundthat Ms Shaw had not identified any unjustified actions of the DHB.11 Further, shedid not raise her personal grievance for unjustified disadvantage within the 90-daytime limit in s 114(1) of the Employment Relations Act 2000.12 There were noexceptional circumstances that would enable the Authority to exercise its discretion toallow the personal grievance to be raised outside the 90-day time period as pers 114(4).13 Regarding the claim for unjustified dismissal, the Authority held thatMs Shaw's dismissal was a "decision open to a fair and reasonable employer" and wastherefore justified.14Employment Court judgment[9] Ms Shaw appealed to the Employment Court.15 The Court upheld the decisionof the Authority, finding that the personal grievance for unjustified disadvantage wasnot raised within the 90-day time limit.16 It also held that the dismissal was justifiedin light of the breach of patient privacy.17 In a separate judgment, theEmployment Court awarded the respondent costs totalling $48,960.18Court of Appeal judgment[10] Ms Shaw then applied for leave to appeal to the Court of Appeal.19 The Courtconsidered that she was seeking to challenge findings of fact rather than law and, even10 Shaw v Bay of Plenty District Health Board [2017] NZERA Auckland 322 (Member Fitzgibbon)[2017 NZERA determination] and Shaw v Bay of Plenty District Health Board [2018] NZERAAuckland 390 (Member Fitzgibbon) [2018 NZERA determination].11 2017 NZERA determination, above n 10, at [31].12 At [32]–[33].13 At [35]. Nor had the District Health Board consented to Ms Shaw raising her personal grievanceoutside the 90-day period.14 2018 NZERA determination, above n 10, at [129].15 NZEmpC judgment, above n 1.16 At [78].17 At [161].18 NZEmpC costs judgment, above n Error! Bookmark not defined., at [35].19 Shaw v Bay of Plenty District Health Board [2022] NZCA 241 (French and Katz JJ).had they been questions of law, they were without merit and were not issues of generalor public importance. 20Extension of time[11] The reason there was a delay in applying to this Court for leave to appeal isthat Ms Shaw first applied for leave to appeal against the substantive EmploymentCourt decision in the Court of Appeal. She did file her application for leave to appealin this Court within 20 working days of the Court of Appeal judgment. In thesecircumstances, we grant her application for an extension of time.Application for leave to appeal against substantive decisionOur assessment[12] Ms Shaw largely reprises the arguments she made in the Courts below. Weagree with the Court of Appeal that the questions she wishes to argue are questions offact rather than law. They are in any event related to the particular circumstances ofher case and therefore do not raise issues of general or public importance.21 Nothingraised by Ms Shaw suggests a risk of a miscarriage of justice.22 The case involved anorthodox application of the law to the facts. In any event, there is nothing about thecircumstances that make them "exceptional" and therefore justify this Court grantingleave to appeal directly from an Employment Court decision.23Application for leave to appeal against costs decisionOur assessment[13] Ms Shaw has not identified any error of law in the Employment Court'sapproach. Contrary to her submissions, the Court did consider her financialcircumstances and access to justice issues.24 In any event, the issues raised byMs Shaw relate to the particular circumstances of this case and have no wider20 At [21] and [25]–[27].21 Senior Courts Act 2016, s 74(2)(a).22 Section 74(2)(b). For the threshold required for a miscarriage of justice in civil cases, seeJunior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].23 Senior Courts Act, s 75.24 NZEmpC costs judgment, above n Error! Bookmark not defined., at [25]–[26].implications. There is no risk of a miscarriage. The Employment Court applied anorthodox approach to setting costs with a small uplift for wasted costs. There are noexceptional circumstances warranting a direct appeal to this Court.25Result[14] The application for an extension of time to apply for leave to appeal is granted.[15] The application for leave to appeal is dismissed.[16] The applicant must pay the respondent costs of $2,500.Solicitors:Garry Pollak & Co, Auckland for ApplicantHolland Beckett Law, Tauranga for Respondent25 Senior Courts Act, s 75.