Unfair dismissal case
TRIBUNAL SAYS GOVT SHOULD RE-EMPLOY HERNANDEZ
- ‘Evidence’ letter handed to RGP
by Dominique Searle
The Tribunal that heard Joanna Hernandez’ challenge to her dismissal from the Social Services Agency has recommended that she be given an alternative job back with the Government service on the “same scale, conditions, rights and level of responsibility as she had when employed.”
And, in a statement that will put pressure on the Government to reconsider its previously stated intention not to accept such a recommendation, Isaac Massias, the Tribunal Chairman, has stated that “the Tribunal is sure that the (Social Services Agency/Government) will do what is right and just, in accordance with the high standards and behaviour that all citizens of Gibraltar expect from its Government.”
As the decision was issued it also emerged that Ms Hernandez had handed in an envelope to the Royal Gibraltar Police relating to the evidence she would have brought under cross-examination had the Agency continued to defend its stance at the Industrial Tribunal.
Ms Hernandez, a single mother of 40, has consistently alleged that her dismissal was the result of her ‘whistle blowing’ on alleged reports of earlier irregular and abusive behaviour at the Dr Giraldi Home affecting disabled children and adults who are cared for there. She was on a probationary year as manager, having worked at the home previously as well as having been a classroom aid.
Last week in a shock move the lawyer for the Agency, Mark Isola, read a statement in which the Government said it was unable to produce its star witness and that a verdict of unfair dismissal must follow. It sought to deny that it had conceded unfair dismissal in this case.
But in his written decision on compensation yesterday Mr Massias said that as a consequence of the Government’s failure to put up a case he ruled that the dismissal was unfair. He said that the case had been actively pursued and defended and had even involved appealing a Tribunal decision at the Supreme Court, a case which Government lost.
Mr Massias declared that the Government’s decision “not to adduce evidence as to the fairness of the dismissal, whether by unwillingness or inability, has come as a surprise.” But he would not comment further, he said, on the Government’s decision or motive.
Ms Hernandez receives £25,272 in compensation with a deduction having been made for failing to seek alternative employment in the period since her dismissal. Mr Massias said he had taken into account her mental state and doctor’s certificate but concluded that this should not have prevented her from seeking work. He also suggested that given her intelligence and ability she could have retrained. He did not accept that the publicity of the case could be used as an excuse for not even attempting to find alternative employment.
In considering the question of re-engagement Mr Massias also noted that “throughout the case political undercurrents, far transcending a dismissal case have been noted. Indeed many press statements have been made making accusations of issues to be raised in this case. Whilst there is nothing inherently wrong in using the press to debate issues of importance, the manner in which the case has been publicised, before even bringing evidence before this Tribunal, cannot but have had the effect of creating animosity between Ms Hernandez and her former fellow workers and more senior staff.”
However, in the face of the Government suggesting her mental state as a bar to re-engagement, the Tribunal accepted Ms Hernandez’ argument that her life would return to normal and her mental anxiety and depression would dissipate. Mr Massias said it would be inequitable to punish Ms Hernandez for ill health attributed to her present predicament.
Whilst Mr Massias accepted there was a breakdown as between Ms Hernandez and the Agency, he pointed to the size and scale of Government as an employer saying it should be possible to find her an alternative posting without too much difficulty.
http://www.chronicle.gi/readarticle.php?id=000013373&title=The Gibraltar Chronicle
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