Auckland District Health Board v Kate Bierre
 NZEmpC 108
IN THE EMPLOYMENT COURT AUCKLAND
In the matter of a Challenge to a Determination of the Employment Relations Authority
Michael O'Brien and Nura Taefi, counsel for plaintiff
Helen Cull QC and Richard Fletcher, counsel for defendant
Challenge to admissibility of evidence under s189 Employment Relations Act 2000 (equity and good conscience) — defendant alleged unjustified dismissal — Employment Relations Authority held evidence relating to defendant's mental and emotional state admissible — whether communication confidential under s189 and Health Information Privacy Code — whether medical professional giving opinion evidence — whether non-practising psychologist who had not tested defendant was able to give evidence as an expert.
The issues were: whether the communications with A were confidential under s189 ERA and the Health Information Privacy Code (“HIPC”); whether A was giving opinion evidence and whether Z was able to give evidence as an expert.
Held: Under s189 ERA, a reasonable person in B's position would have reasonably expected the information to be disclosed in the way proposed by the ADHB. Even if it was confidential, the evidence was admissible under s69(2) Evidence Act 2006 (“EA”) (overriding discretion as to confidential information), as confidentiality was outweighed by the desirability to have all available information before the Court.
The Privacy Act 1993 (“PA”) and HIPC did not made the documents inadmissible or fetter the Court's discretion under s189 EA. The HIPC did not extend to information that was disclosed reasonably as part of a proceeding before a court or tribunal. That was expressly provided for in Principle 10(c)(iv) PA and Principle 11(e)(iv) PA, and Rule 10 HIPC (limits on use of health information) and Rule 11(2)(i) HIPC (limits on disclosure of health information). Further there had not been a traditional doctor-patient relationship. A worked in a non-treatment assessment facility, whose role was to provide advice to managers in relation to their employee's health and safety at work.
A was not proffered as an expert witness to give opinion evidence. Nor did A have a conflict of interest with the ADHB, as she was not B's medical practitioner.
The fact that Z did not hold a current practising certificate did not mean he did not have the relevant and necessary expertise to give expert evidence contradicting that of B's expert. Although the currency of Z's experience might be the subject of criticism, it did not necessarily disqualify him. The contents of the Code of Conduct for Expert Witnesses (“the Code”) were not minimum threshold requirements where failure to attain them precluded a witness from giving expert evidence. Requirements in the Code for an intended expert witness to specify examinations or tests undertaken by the witness did not constitute an absolute barrier to giving expert evidence if no such test had been undertaken.
None of the evidence was inadmissible.
INTERLOCUTORY JUDGMENT OF CHIEF JUDGE GL Colgan
Kate Bierre challenges the admissibility of some of the evidence intended to be called by the Auckland District Health Board in her proceedings alleging breach of contract and unjustified dismissal. To decide those questions it is necessary first to consider the general nature of the proceeding so that the intended evidence can be put in context.
In addition to breach of contract causes of action unaffected by limitations' questions, Ms Bierre claims that she was constructively and unjustifiably dismissed by the Board. It is common ground, however, that Ms Bierre did not raise her personal grievance within the maximum period of 90 days after the alleged constructive dismissal. Therefore Ms Bierre must obtain leave to extend the time for raising the grievance so that it can be considered on its merits. She relies on the statutory exceptional circumstance under s 115(a) of the Employment Relations Act 2000 (the Act) that she had “been so affected or traumatised by the matter giving rise to the grievance that … she was unable to properly consider raising the grievance within the period specified in s 114(1) …”.
The Board does not agree that Ms Bierre should be given leave to raise her grievance out of time. So not only must she satisfy in evidence the test set out above, but the Court must be satisfied that the delay in raising her personal grievance was occasioned by this exceptional circumstance and, independently, that it considers it just to give leave to raise the personal grievance after the expiration of that 90 day period: s 114( 3) and (4) of the Act.
Both parties seek to put forward medical evidence about Ms Bierre's condition at relevant times. That to be adduced by the plaintiff is challenged by the defendant as inadmissible.
Initially, the questions of admissibility arose in the context of proceedings then before the Employment Relations Authority. The subsequent removal by the Authority of the whole case to this Court for hearing at first instance means that these questions of inadmissibility of evidence must be determined in respect of evidence to be given to the Employment Court.
Evidence admissibility in the Employment Court is governed by s 189 of the Act which provides:
189 Equity and good conscience
(1) In all matters before it, the Court has, for the purpose of supporting successful employment relationships and promoting good faith behaviour, jurisdiction to determine them in such manner and to make such decisions or orders, not inconsistent with this or any other Act or with any applicable collective agreement or the particular individual employment agreement, as in equity and good conscience it thinks fit.
(2) The Court may accept, admit, and call for such evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not.
As has been noted in other cases, the Court has a very broad discretion to admit or to refuse to admit evidence. The interests of justice in the particular case will be the ultimate determiner. Although the Evidence Act 2006 does not apply to proceedings in the Employment Court, its provisions and other rules of evidence in the courts of general jurisdiction are important guiding factors in determining the admissibility of evidence. So too are other relevant statutory provisions.
Ms Bierre claims to have been dismissed constructively by the Board. That is, although she resigned, she says the circumstances leading to her resignation and, in particular, her treatment by the Board were such that the Court should find that she was dismissed. In effect, because leave to bring the personal grievance cause or causes of action is required, Ms Bierre bears the preliminary onus of establishing the necessary circumstances under ss 114 and 115 of the Act. She will attempt to do so by her own evidence, evidence from a close relative and, significantly for the purpose of this judgment, by the evidence of Susan Harding, a clinical psychologist, which will include opinion evidence about Ms Bierre's mental and emotional health.
Ms Harding's opinion evidence will be based on reading the witness briefs of Ms Bierre and her close relative and on a series of professional consultations with Ms Bierre in 2009 and early 2010. Ms Harding's professional opinion is, in a nutshell, that at relevant times Ms Bierre “was not in a mental state that would have allowed her to consider taking any form of legal action against Auckland DHB.” Further, Ms Harding will opine that at relevant times Ms Bierre “was not aware that she could take any legal action against Auckland DHB for what, in my view, was work-related stress and burnout.” The Board has now responded to Ms Harding's evidence with its own experts' opinion and other medical and supporting evidence.
The Board intends to call the evidence of Stephanie Hlohovsky, its Nurse Manager for the Paediatric and Congenital Cardiac Service. Ms Bierre objects to the contents of paras 52 and 57 (inclusive) of the intended evidence of Ms Hlohovsky and associated attachments known as exhibits SH-6, SH-7 and SH-8 to her affidavit.
In para 52 Ms Hlohovsky speaks of contacting a Board occupational health nurse by email and outlining to that person what Ms Bierre had told Ms Hlohovsky. The email is known to the parties as exhibit SH-6. The email sets out Ms Hlohovsky's account of Ms Bierre's work history with the Board and of her relevant medical circumstances during that period of employment. The email outlines to the occupational health nurse Ms Hlohovsky's advice to Ms Bierre including Ms Hlohovsky's intention to seek advice from occupational health.
Paragraph 53 is Ms Hlohovsky's response to a comment by Ms Bierre in her brief of evidence that she was unaware why Ms Hlohovsky had suggested to her that she see an occupational health doctor. Ms Hlohovsky's intended evidence is to answer that rhetorical question raised by Ms Bierre including to annex, as intended exhibit SH-7, a copy of Ms Hlohovsky's referral letter to the occupational health doctor, which she will say was sent at the time to Ms Bierre. The referral letter is substantially similar to the email (exhibit...
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