Giraldi Home: Joanna Hernandez Tribunal hearing
MASSIAS CONSIDERS AWARD AS OPPOSITION AND GOVT SHIFT TO PRESS RELEASE BATTLE
Any allegations ‘should be made to authorities’ says SSA
– By Dominique Searle –
Gibraltar Government was last night seeking to cling to and defend its position as regards the Joanna Hernandez sacking from the Social Services Agency (SSA) and concede only technically to the unfair dismissal ruling that is inevitable after it withdrew its evidence from the case.
Whilst Ms Hernandez, with little opposition from Government, could well take the maximum compensation of some £36,504 the Industrial Tribunal chairman Isaac Massias did not give an instant decision but adjourned to next week, a signal that he is still considering the complainant’s applications for costs and a recommendation for re-instatement.
With the Social Services Agency stating clearly that it has no intention of taking Ms Hernandez back, a recommendation for reinstatement if made could nonetheless create scope for further compensation to be sought.
Joe Bossano, Opposition Leader, who has been representing Ms Hernandez urged, as did the complainant herself, that there should be some area of the agency, or elsewhere in the Civil Service where she started out as a classroom aid in the education department. Mark Isola, lawyer for the SSA rejected the proposition.
“Very well, here we go again,” sighed Mr Massias as yet another session in the long running case opened. Mr Bossano pressing to revive the full hearing and the chairman and Mr Isola insisting that the only option in the circumstances was to discuss the compensation and nothing else.
At the hearing and later in a press release - the case has largely run in parallel with GSLP press statements on certain issues - Mr Bossano made the point that when Government had decided it could not produce its star witness Isabella Tosso it had nonetheless indicated, as recently as last Friday, that it would proceed and Marie Gomez, present yesterday, would be the new lead witness.
Mr Massias said that the Government had “folded its cards” and was no longer defending its case. Mr Bossano suggested that the Government’s handling of the case from the start, right through to its failed court appeal to define a year as 53 weeks amounted to its having been “frivolous or vexatious”.
Mr Isola said the position was clear in law, there was no evidence brought forward for the dismissal, which means unfair dismissal.”
Despite repeated attempts by Mr Bossano to raise questions of the evidence Mr Massias made clear that this was not “a tribunal of inquiry”.
Mr Isola attempted to rebut Mr Massias’ statement that the Government side was tacitly admitting this had been an unfair dismissal but the chairman said that whilst he recognised that Mr Isola was trying to “walk in a little grey area” either evidence was brought or it was not, if not then, said Mr Massias, it is unfair dismissal.
The session heard that Ms Hernandez had not worked since her dismissal and had throughout this time been given medical certificates to the effect that she was not able to work as a result of the impact of the incident.
Apart from compensation there is also a basic payment to be made, Mr Isola argued this is fixed at £2,200 but Mr Bossano said that because that was 20 years out of date previous Tribunals had recognised an inflation element and raised this to £3,300.
Mr Bossano made clear he was seeking the maximum compensation and no argument was offered against this. He also urged the Chairman to consider the question of costs in the light of the way the proceedings had stretched out. He said the full compensation could have been awarded last year if the decision to drop the contest had been taken then but the compensation now was the same maximum as it would have been last year.
On reinstatement Mr Isola declared this would not be practical and reminded the Tribunal of the statements Ms Hernandez has made including about staff at the agency. He rejected her suggestion that there had been change at the SSA such as that she could fit in again. He said if she were at any point reprimanded she would immediately connect that back to the current case.
Mr Massias floated the idea of employment in another sector of the SSA, but Mr Isola made his instructions clear, it would not be accepted.
The reasons will be made public next week.
GSLP STATEMENT
Later Mr Bossano, issued a statement from the GSLP noting that the SSA had stated that it abandoned its defence giving the “excuse that the Agency has been unable to obtain the attendance of Ms Isabella Tosso the CEO ‘who is believed to be in UK’.”
The GSLP said that this implies that the SSA does not know where she is and have not been able to contact her.
“The Agency knows full well where she is, has been in contact and has chosen to abandon the case because they would have lost it and allegations of abuse would have been aired in the course of the hearing which is what they wanted to avoid.”
Although the Agency says that the decision not to confirm Ms Hernandez as manager of the Giraldi Home in November 2005 was taken by Mrs Tosso and that only she could give evidence for the decision and the manner it was arrived at, the GSLP produce a copy of the letter of termination from Mrs Tosso which says to Ms Hernandez that “it is the conclusion of the Social Services Agency that you have failed to meet the required standard.”
The GSLP claim that the decision taken by the Agency means the involvement of Yvette del Agua as Chairperson of the Board appointed by her. “For the past 2.5 years the claimant has been asking for evidence of when and by whom her performance was reviewed and who took the decision not to confirm her appointment,” says the GSLP. It alleges that the Agency “is not telling the truth on this issues like it is not telling the truth in the other matter raised in this case.”
AGENCY DENIES ACCEPTANCE.
The Ministry for Family, Youth and Community affairs yesterday evening declared that “the collapse of the case yesterday does not mean that the Agency accepts that Joanna Hernandez was unfairly dismissed. The Agency remains of the view that she was fairly dismissed for good and proper reason. The case collapsed because the Agency was unable to obtain the return to Gibraltar of its principal witness. Without this witness the Agency cannot prove what it must prove – thus entitling Mr Hernandez to win, for that reason. “
The Agency repeated what it has said frequently throughout his case, and earlier.
“All allegations involving the well fare of service users are investigated by management. All allegations made, which indicate the possible commission of a criminal offence are referred to the police, for proper, external and independent investigation. This has happened in relation to the allegations made by Joanna Hernandez. In these circumstances, the Government condemns the statement of Mr Bossano that he believes that the Government, with the alleged participation of the Attorney General and the police, has been trying to cover up allegations. This is preposterous. “
The Agency said that if Mr Bossano or Ms Hernandez have further allegations of legal wrongdoing by anyone their duty is to report the matter to the RGP for investigation in the usual and proper manner.
“The Industrial Tribunal is not the appropriate forum for airing or investigating such allegations, however much Mr Bossano may feel frustrated at what he clearly sees as being deprived of the opportunity to convert this Tribunal into another of his political circuses.”
“This is best illustrated by Mr Bossano’s statement … that he believed that the ex-Chief Executive of the Agency had simply made a recommendation for dismissal and that it was the then Social Services Minister, Yvette Del Agua who ultimately took the decision to fire Ms Hernandez and should have given evidence. This statement by Mr Bossano is false. The decision to terminate Ms Hernandez’s contract was taken entirely by the Chief Executive in the exercise of her managerial functions. The Minister’s intervention was limited to establishing that the Agency had followed due process and that legal advice had been sought and obtained from the Attorney General’s Chambers.”
The Agency again called for anyone who alleges wrongdoing to report it to the management of the Agency, to the RGP or to the Government.
“However, a constant campaign of innuendo without reporting allegations to the police, is totally unfair on the staff of the Agency who are workers delivering a valuable public service,” it said.
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