Sacked hospital worker now taking her fight to the Supreme Court

Ana Shaw, sacked from Tauranga Hospital, has failed several attempts to prove it was unjustified and now plans to take her case to the Supreme Court. Photo / Supplied

A former senior hospital worker sacked for collecting and keeping patient information is now taking her grievance to the Supreme Court.

Ana Shaw, who claimed she kept the records to prove she was bullied and undermined at work, has lost her bid to appeal the Employment Court's decision which was made earlier this year.

In a decision released this week, the Court of Appeal found her request for an appeal did not raise any arguable question of law, let alone one that was of general and public importance as to warrant an appeal.

She told Open Justice today that she now intends to take the matter to the Supreme Court.

Clearly angry, Shaw said the system was "corrupt" and she was not about to back down.

"No darling, this is not losing. I've got evidence to show this is a corrupt system," she said.

Shaw was a cardiac physiologist at Tauranga Hospital from August 2010 but was dismissed in March 2015 for what the DHB said was serious misconduct.

She was found to have collected and kept patient information, in an attempt to help prove claims she was bullied.

She told national media at the time that a colleague called her a "black lady", another described her as an "African wildebeest" and another told her to "go back to South Africa".

Following her dismissal, Shaw raised two personal grievances in the Employment Relations Authority, for unjustified disadvantage, and unjustified dismissal.

The ERA ruled that Shaw's dismissal from Tauranga Hospital was justified. She then took the argument to the Employment Court which upheld the Authority's decision, in that she had breached Bay of Plenty District Health Board's privacy policy around confidential patient records.

The Court of Appeal has now declined her application for leave to appeal and ordered that she pay costs.

Shaw, who now works in a supermarket in Tauranga, said she had been financially ruined by the court processes, but she was being helped on a contingency basis by the lawyer assisting her.

"I've now given my lawyer instructions to take this to the Supreme Court. This (latest decision) is absolutely disgusting.

"The DHB has destroyed my life and they want to destroy it further," said Shaw, who continues to allege conduct by health board bosses was outside the employment matter, including that she had been stalked by them.

Shaw proposed an appeal on two grounds, including unjustified disadvantage and unjustified dismissal. The Appeal Court found that in the former the Judge's approach was appropriate.

With regard to the proposed unjustified dismissal appeal, Shaw argued the Employment Court "totally failed to consider the full legal test for justifying a dismissal," and instead focused on whether her actions around retaining the documents could amount to serious misconduct.

A former senior staff member sacked from her job at Tauranga Hospital now plans to take her case to the Supreme Court. Photo / NZME

The Court of Appeal noted there was "force in the respondent's submission" that this appeared to be a factual issue "dressed 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 Court said the Judge was critical, however, of 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."

The decision also noted that Shaw also wanted 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."

The Court of Appeal concluded this aspect of the appeal did not raise any arguable question of law, let alone one of general and public importance so as to warrant an appeal.

"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."