The Employment Appeals Tribunal (EAT) has ordered the reinstatement of a care worker who was sacked after a Brothers of Charity service user sustained blisters from a bath given by the worker.
As a result of the blisters sustained in the bath, the service user, referred to as AB, was taken to the local A&E.
The care worker, Paolo Antonio, was sacked by his employer, Brothers of Charity Limerick, arising from the incident.
However, Mr Antonio brought an unfair dismissal action, and in a rare step the tribunal has taken the unusual step of ordering the reinstatement of Mr Antonio after finding he had been unfairly dismissed by the agency.
Extremely rare
Such an order by the tribunal is extremely rare. Out of 1,669 unfair dismissal cases in 2013, the tribunal ordered an employee’s reinstatement on only two occasions.
The tribunal hearing at Limerick was told that on September 21st, 2012, Mr Antonio had given AB a bath.
When AB was removed from the bath, two care assistants noticed AB’s feet were very red.
Staff nurses were alerted and discovered AB was very red from the waist down - cream was applied to the affected areas and he was dressed as normal.
After breakfast, AB was checked again by the nurses. The redness had faded but he had blisters on both feet and was taken to A&E.
Immediately suspended
Mr Antonio was immediately suspended pending an investigation, and it was alleged serious misconduct had resulted in the injury of AB.
In his evidence to the Brothers of Charity Limerick investigation, Mr Antonio said the incident involving AB was an accident.
He said he checked the water temperature and said there were health and safety concerns with the timeframe within which maintenance responded to faults. The house was in need of modernisation, he claimed, including the replacement of old enamel baths with plastic baths.
Mr Antonio said that did not intend any harm. Evidence was given that on a previous occasion, a different service user was red coming out of the bath and the care assistant in that case was not dismissed.
A senior manager at the Brothers of Charity Limerick said the two aspects of the case that struck her were the severity of the burns suffered by AB, and Mr Antonio’s failure to notice the burns.
Mr Antonio was sacked. No lesser sanction was considered, as the service users were “too vulnerable”.
Ungloved hand
Mr Antonio told the tribunal he never received any training on how to check the water temperature. He had swirled his ungloved hand in the water and found it to be fine, he said.
Mr Antonio added he had taken AB out of the bath and dressed him, and did not notice any blisters - only slight redness that was normal after a bath.
He told the tribunal there was no intent to harm AB, it was an accident and that the water was too hot due to the water/bath problems.
In its determination, the tribunal said it was clear the method used to check the water temperature in the bath was not safe or foolproof, to the extent the Brothers of Charity has now implemented new procedures for testing the water.
The tribunal stated Mr Antonio’s dismissal “is undeniably unfair”.
The tribunal stated it had every sympathy for the administration involved in the profession, but the Brothers of Charity had acknowledged no training was given to Mr Antonio; he was a care assistant, not a medical professional.
