Anti-bullying legislation must be ‘reviewed and reformed’, Unite says after disciplinary board dismisses Cassaglia case

Gibraltar’s Bullying at Work legislation should be “reviewed and reformed” if the Gibraltar Government and employers have a “genuine” commitment to drive out bullying in the workplace, Unite the Union said on Tuesday.

Unite made the statement as it raised “serious concerns” following a decision by an independent disciplinary board appointed by the Gibraltar Health Authority to assess allegations against former Medical Director Dr Daniel Cassaglia.

Last week, the board dismissed all charges of misconduct against Dr Cassaglia following an incident in 2017 in the hospital laboratory.

Dr Cassaglia had faced two disciplinary charges alleging he had pushed a staff member and used inappropriate or offensive language during the exchange.

But the GHA’s disciplinary board considered the circumstances of the exchange and found in favour of Dr Cassaglia, who from the outset had strongly disputed the allegations made against him.

The disciplinary process was initiated in the wake of the 2017 incident but was put on hold pending the outcome of separate legal proceedings before the Employment Tribunal, where the GHA faced a claim under Gibraltar’s anti-bullying legislation arising from the same incident.

The Employment Tribunal initially ruled that Dr Cassaglia’s conduct was serious enough to warrant a finding against the GHA under Gibraltar’s anti-bullying legislation.

But that finding was challenged by Dr Cassaglia and in April this year, the Supreme Court set aside the tribunal’s decision and said it was wrong in law.

The Supreme Court ruling was itself the subject of an appeal on points of law brought before the Court of Appeal, which heard the case last month and has yet to deliver its judgement.

In reaching its conclusion last week, the disciplinary board found that witnesses who offered evidence supporting the complainant “had colluded or at a minimum there had been active coordination that could not be properly explained”, making their evidence “unreliable”.

It also found that there was evidence suggesting the “collusion” was instigated or encouraged by a senior member of the laboratory staff – not the complainant in the disciplinary case – and that there had been an “unexplained failure” to disclose “crucial documents” to the initial investigation.

Those documents, the GHA said, had also been “withheld” from the Employment Tribunal in the proceedings against the GHA.

Yesterday though, Unite said it was “incredulous” at the outcome of the disciplinary process.

“It is somewhat surprising that the outcome of what is supposed to be a confidential process has been made public and it unfortunately demonstrates that it is not what you have done, but who you are in respect of GHA’s disciplinary process,” said Stuart Davies, Unite’s National Officer for Gibraltar.

“Whilst it is clear that the internal disciplinary process should not slavishly follow the outcome of the employment tribunal, it is indisputable that the tribunal made a finding of fact of physical contact, raised and raising voices, inappropriate language, plus anger and frustration.”

“These are findings of fact that are unaltered by the outcome of the Supreme Court proceedings.”

“An outcome of the GHA’s internal, and very delayed, process to dismiss all charges is incredulous when framed against the initial investigation finding of a prima facie case against the former Medical Director and also the findings of fact by the employment tribunal.”

Unite said too that the disciplinary process differed depending on the person involved and that it was being “routinely undermined”.

“This outcome draws a sharp comparison to the application of the disciplinary procedure in the GHA to more junior members of staff, some of whom are interdicted for long periods, often unjustifiably and/or are issued warnings that explicitly breach the General Orders,” Mr Davies said.

“The disciplinary process in the GHA is being routinely undermined, either deliberately or due to a lack of understanding of the General Orders.”

“The outcome reached in the former Medical Director’s case does little to restore faith in the disciplinary process and its application.”

“This whole episode, the internal process and the litigation that has traversed the court system highlights the need for the Bullying at Work legislation to be reviewed and reformed if Government and employers are genuine in a desire to drive out bullying behaviour in the workplace”.