Gibraltar Government yesterday rounded on Industrial Tribunal chairman Issac Massias over his ruling in the Joanna Hernandez case and sought to draw a clean distinction between the Social Services Agency and the Government. It point blank rejects any suggestion that it should employ Ms Hernandez.
Setting out the technical distinctions between the SSA and Government the Government questioned the quality of Mr Massias' decision.
Just over a week ago the Tribunal that heard Ms Hernandez' challenge to her dismissal from the SSA 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."
In his statement Mr Massias said that authorities should reconsider the previously stated intention not to accept a recommendation for re-employment. "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, he said."
But yesterday the Government said it had noted and given due consideration to the ruling.
"The Government is neither a party to the proceedings nor Ms Hernandez's employer. Ms Hernandez was an employee of the Social Services Agency, which is a separate statutory agency. Employees of the Social Services Agency are not Civil Servants. "
"Having ruled that it was not possible for Ms Hernandez to be re-employed by the Social Services Agency, Mr Massias then recommended that Ms Hernandez be 'found an alternative position in another Government department'. This recommendation reflects the misconception that the Social Services Agency is itself a Government Department. Nor does the recommendation accommodate the fact that there are specific recruitment and entry procedures for the Civil Service. The Government is further advised that Mr Massias' ruling is also wrong in law because the Government is not an 'associate employer' for the purposes of the Employment Act. It was therefore not properly open to the Tribunal to make that recommendation," said No 6.
Accordingly, Government says that were Mr Massias' recommendation binding on the Government, the Government would appeal against that part of his ruling. However, "Mr Massias' recommendation is not binding on the Government, and the Government will therefore not accept or act on that recommendation for the reasons stated above. "
In these circumstances, the Government states that it particularly regrets the "inappropriate" statement in Mr Massias's ruling that "the Tribunal is sure that the Respondent will do what is right and just in accordance with the high standards and behaviour that all citizens of Gibraltar expect from its Government".
The Respondent, says Government, is the Social Services Agency, not the Government.
It added:
"In any case, the Government rejects the clear implication that failure to accept the Chairman's legally flawed and impractical recommendation would represent a failure by the Government to do what is 'right and just'. Such an evaluation is outside the scope of Mr Massias' competence as Chairman of the Industrial Tribunal. "
"If Ms Hernandez wishes to obtain a job in the Civil Service in the future, she will have to apply for vacancies, like any other citizen, when jobs are advertised to the general public. The Civil Service recruitment process cannot properly be circumvented in the way that the Chairman of the Tribunal recommends.
Nor, in any case, is there in the Civil Service, a position for a disability residential home manager of the same 'scale, conditions, rights and level of responsibility' as the one Ms Hernandez held in the Agency. Accordingly, quite apart from all the other reasons for its rejection by the Government, Mr Massias' recommendation is totally impractical."
The Government states that it "always seeks 'to do what is right and just in accordance with the high standards' that it sets for itself and which should properly and reasonably be expected of it. Contrary to Mr Massias' insinuation to the contrary, the test of whether the high standards are met is not the acceptance or rejection by the Government of his recommendation."
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