A former senior hospital worker sacked for collecting and keeping patient information has failed in another bid to prove her dismissal was wrong.

Ana Shaw, who claims she kept the records to prove she was bullied and undermined at work, now plans to appeal the Employment Court’s decision, a representative says.

The Court has backed the Employment Relations Authority’s earlier decision that Shaw’s dismissal from Tauranga Hospital was justified, in that she had breached Bay of Plenty District Health Board’s privacy policy around confidential patient records.

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.

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

However, the ERA backed the DHB’s decision to dismiss Shaw for what it said was serious misconduct, which triggered the challenge in the Employment Court.

An online public appeal by Shaw to crowd-fund costs associated with the claims, through Givealittle, raised only a minimal amount from six donors.

The DHB’s actions were criticised by Shaw’s representative CultureSafe NZ as “procedurally unfair and unwarranted”.

Shaw claimed workplace difficulties, including that a staff member “repeatedly tampered with her patient notes”, and management blocked her learning opportunities making her feel “belittled, demeaned and ignored”.

Efforts to raise the matter with management were never actioned, Shaw claimed, and the union advised her to keep detailed records of the incidents.

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

She is reported as having said the problems began soon after she started there and that while bullying in the workplace was worldwide, she had never struck the degree of malice she was confronted with.

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”.

The Employment Court noted in its decision, released on February 4, that the “unfortunate comment” made by an ECG technician about Shaw being black was seen by her as incomprehensible, because she is white.

The Court heard the comment, “Black lady, have you gone to step-down ward yet,” was challenged by Shaw who confronted the colleague at the time, but she failed to convince the Court it was properly reported to management.

“Ms Shaw has not established that the circumstances in which the remark was made amounted to the raising of a personal grievance within the meaning of the Act,” Judge Kerry Smith said in his decision.

Shaw also mentioned in her evidence that the ECG team leader left a note on equipment which said: “Keep an eye on the African Wildebeest”.

Shaw was not named in the note but she considered it was about her.

The Court’s decision noted that Shaw acknowledged she had not raised her concerns about this particular note with the DHB at any time, which meant it could not form the basis of a personal grievance.

The Court said there was no dispute that during her employment Shaw collected and kept patient records.

Shaw explained to the DHB she kept them to show edits made on her reports and to provide evidence of the impact other staff were having on her work productivity and herself.

The discovery was made after the DHB looked into a complaint Shaw had made over the handling of an investigation into an email she sent colleagues in July 2014.

The email was sent to all staff in the department where she worked, criticising the way records for a patient referral had been dealt with.

Shaw did not supervise staff in the department and the email drew a rebuke from her manager.

The response from a worker who received the email was then handled as a complaint and an investigation followed.

Judge Kerry Smith agreed with expert evidence that Shaw’s conduct “needed to be looked at through the lens of the significance of patient privacy”.

He said the collection and retention of that confidential information for several years, to eventually use it for her own purposes, was “contrary to the DHB’s policy, Ms Shaw’s professional responsibilities and training”.

“While she may have thought there was a bona fide reason to collect and hold this information, she only reached that conclusion by putting her interests ahead of those of the patients whose records she collected and kept,” Judge Smith said.

He said it was a case where if Shaw had established a personal grievance, he would not have awarded her any remedies.

A spokesperson for Shaw and anti-workplace bullying advocate Allan Halse, of CultureSafe NZ, told Open Justice they intended to appeal the latest decision.

Halse could not yet say which points of law might be open to challenge on appeal, other than the judgement being inherently wrong.

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