Massias Cuts Hernandez Award, But Calls for Her Reinstatement [17 April, 2008]

Will truth about alleged Giraldi Home abuses ever become public?


For more than two years Joanna Hernandez fought to defend her professional reputation and bring to light alleged abuses within the Social Services Agency. Hers was lonely battle. Following the withdrawal of trade union backing in the legal clashes which she faced in her claim against wrongful dismissal by the Agency, only the resolute support of Opposition leader Joe Bossano kept her determination alive. That...and her insistence that something be done to ensure the protection of those in care.


But that lone struggle has changed.


Last week Ms Hernandez was vindicated when the Caruana regime tacitly agreed that she should be paid substantial compensation and - after prolonged legal wrangling that took matters to the Supreme Court and the Appeal Court before an Industrial Tribunal even considered her claim - threw in the legal towel. It was the signal for civic-minded minority groups and numerous ordinary members of the public as well as local politicos to rally to her support.




HONESTY AND HUMAN DIGNITY


"All sorts of people - many of whom I know, but others I haven't met before - call out encouragement and support," she told VOX. "They call out things like ‘Well done' and ‘You've really got b*lls, Joanna'. And these are not just Opposition supporters...quite a lot are members of the GSD. But this is not, and never has been a political thing. It's about honesty and human dignity...and I think most people see it that way. It certainly doesn't feel as if Joe [Bossano] and I are carrying the battle on our own any longer."


And the battle is not yet over. For though Mark Isola, who appeared at the Tribunal to represent the Government and the Agency, indicated at the close of the main hearing that the authorities were prepared to pay compensation of £36,500, in his ruling Tribunal chairman Isaac Massias, awarded Ms Hernandez only £25,000. He did, however, recommend that the Government should reinstate the former manager of the Dr Giraldi Home, either within the Agency or in some other arm of Government employment on the same salary and at an equivalent rank to those from which she was wrongfully dismissed. In his ruling, although the chairman appears to have taken into account the fact that in medical grounds, the stress caused by her dismissal and the subsequent court actions had prevented Ms Hernandez from seeking other employment since her dismissal, in making his award Massias seems not to have considered the anguish and distress she suffered. He effectively deducted the equivalent of eight months' salary from the maximum award on the questionable grounds that she could have sought work since last February.


(Nor is this the first controversial decision by the Tribunal's chairman. He raised legal eyebrows last year when he disallowed a request by Bossano for Del Agua to be subpoenaed as a witness. Although she was the Minister with responsibility for the Agency and chairman of its Board when Ms Hernandez was dismissed, Massias accepted Isola's argument that as Del Agua was no longer Social Services Minister she could not contribute evidence on the dismissal.)




REINSTATEMENT THROUGH THE COURTS


As far as Ms Hernandez's future was concerned, Isola made it clear at last week's hearing that the Government and the Agency would resist any application for reinstatement; thus Massias's recommendation leaves the door open for her to pursue both a more realistic award and reinstatement through the courts. This would extend the ordeal which has had such a serious effect on her health and family life, but also could ensure that enough details of the serious allegations of abuse are aired to put pressure for change on the Agency.


For though there have been official claims of improved conditions across the Agency since Ms Hernandez's dismissal, as recently as a year ago concerned relatives of those in care approached VOX alleging continued abuse and mistreatment. These were raised with, and partly admitted by, Isabella Tosso, the then Agency head, in an interview with the Editor of VOX at the time.


And throughout the hearing, Ms Hernandez has made clear that her prime aim has always been as much the protection of those in care as vindicating her own position. In discussions with her, she frequently refers to "my children" - a reflection of the love and concern which first took her into the sphere of education and care.


And it was with this in mind that on Wednesday - in a glare of media publicity - she responded to the challenge by Government and the RGP that anyone who knew anything about allegations of care abuse should come forward to the Agency or the police when she handed a letter in at the Central Police Station. In it she made clear that although she was making no allegations, those which she had urged her superiors to investigate could be found in the Attorney General's files.


It remains to be seen how Police Commissioner Louis Wink follows up the information contained in the letter. Ironically, any decision to prosecute will be taken by the Attorney General - in whose files those original 12 allegations are to be found. This time, Hernandez and her many supporters hope, there will a thorough and open public investigation.


In one of the few earlier voices of support for Hernandez and Bossano's efforts - and following VOX's exclusive disclosures about the abuse allegations and other failures in the Social Services Agency - the PDP last year called for a public inquiry...a call that was later joined by the official Opposition and the GGR. This - and calls for legislation to protect future whistle-blowers - has been ignored by Caruana.


However, this week, the PDP reiterated its call for the introduction of a Whistleblowers Act in light of "dramatic developments" in the Hernandez case.


"This case demonstrates how citizens need protection from a powerful Executive" said PDP spokesman Nick Cruz. "However much the Government would like to spin these events Joanna Hernandez maintains that she was unfairly dismissed because she reported what she thought were serious concerns about the treatment of the most vulnerable in our society and did not feel these reports were being properly considered.


"Irrespective of the merits of the allegations she made the bottom line is that she made waves and instead of being treated seriously she says she was just brutally fired," said Cruz. "To make matters worse she has had to go through the indignation of years of trying to prove that her treatment was unfair only for this to be conceded at the outset of the hearing. This personal cost as well as the cost to the tax payer which runs into thousands should have been avoided."


A Whistleblowers Act similar to the Public Interest and Disclosure Act in the UK would mean that any employer simply sacking somebody on the grounds that they have reported issues where they reasonably believed that a criminal offence had been committed or the health or safety of an individual was endangered would be entitled to a finding of unfair dismissal.




PUBLIC INTEREST AND CONCERN


"In a place as small as Gibraltar where the power of Government is so close to the individual it is even more important that the individual is protected from potential victimization or State bullying simply because he or she challenges the powers that be. This is particularly vital where all that the individual is doing, at great personal loss, is raising issues of public interest and concern"


Meanwhile the official Opposition has described the whingeing press release, issued by the Social Services Agency when the Government tacitly admitted that Ms Hernandez had been unfairly dismissed as "untrue". It challenged the Government to say who gave the legal advice and when that legal advice was given to terminate Ms Hernandez's employment.


And in a later statement the PDP pointed out that the Government was "now clutching at straws and avoiding answering the key questions" raised by the collapse of its defence in the case. "Having failed to put up any evidence to contradict the inevitable finding that Ms Hernandez was unfairly dismissed the Government has now moved into the public arena to inexplicably try to convince the public that it still maintains the view that Ms Hernandez was fairly dismissed.
UNDIGNIFIED
"The time for that has now passed. In offering no evidence the Government's case has collapsed and Ms Hernandez is entitled to her finding of unfair dismissal. It is undignified for the Government to try to convince the public that black is white. The Government should abandon these efforts immediately...

"Questions of the cost to the tax-payer of this case have also been pointedly avoided by Government. The public are entitled to know the cost of this matter and why the case was not settled earlier to ensure that public monies were not wasted. It would be indefensible if the total costs of this case were to far outweigh the compensation package that must now also be paid. It is an inappropriate use of public money and Government's resources to handle cases in this way. The Government should not avoid these questions.

"Finally the Government should do more to reassure the families of residents that the Dr Giraldi Home is well-run and resourced and has good working practices in place. If it still resists an enquiry into the running of the home, even though this has been requested by families, it should at least meet families to allay those concerns and assure them that matters have been looked into and addressed and would be fully investigated in future should any matter arise.

The Gibraltar Local Disability Movement this weeks aid that the allegation of sexual abuse within the Dr Giraldi Home provoked "strong disagreement and disapproval within our community."

It adds that the position there "has not improved the situation or condition of many who are concern that their love ones may have been subjected to the abuses. And now that government has put the lid on the Industrial Tribunal it seems that the witness statements on the sexual allegation of sexual abuse within the Dr Giraldi Home will not be told. This, is raising many voices within the disabled community."