by Andrew Carey
A LIMERICK care assistant who was “undeniably unfairly dismissed” from his position is to be reemployed by the Brothers of Charity after a tribunal ruled he did nothing wrong when a service user suffered burns and blistering from a bath that was too hot.
Paolo Antonio, a Filipino father-of-two of Shannonbanks, Corbally, was employed by the Brothers of Charity and provided care assistance to service users at one of their residences.
On September 21, 2012, he was giving a service user a bath during the normal course of his work.
He checked the water with his ungloved hand and formed the opinion that it was suitable to bath the man in. When he helped the patient out of the bath, two other care assistants noticed that the man’s feet were red.
Staff nurses were notified and it was found that the man’s body was very red from the waist down. Cream was applied and the man was dressed. When he was checked again, the redness had faded but his feet were blistered.
He was treated at the accident and emergency department at Limerick Hospital before returning to the residence some time later. Mr Antonio was immediately suspended pending an investigation into serious misconduct resulting in injury to the patient.
Mr Antonio attended a pre-investigation meeting the same day and a preliminary report was drafted on October 18.
Other staff were interviewed and one care assistant noted that the water from the tap could run hot or cold at any time and that thermometers were not used. The investigation also found that the bath was enamel and tended to retain heat.
It was also established that a similar incident happened previously but the staff member involved was not dismissed.
At a disciplinary meeting on November 16, 2012, the senior manager at the Brothers of Charity said the investigation found that Mr Antonio’s failure to adequately check the water resulted in the burns sustained by the man who was deemed to be “too vulnerable”.
Mr Antonio was dismissed because “on the balance of probabilities, he did not check the temperature of the water and did not notice the red marks. Neither did he report the injuries and this was described as “gross negligence and serious misconduct”.
An internal appeal subsequently upheld the dismissal.
At the Employment Appeals Tribunal, Michael Purtill, BL (instructed by Ellen Twomey solicitor) argued that Mr Antonio did not receive formal training on checking water temperature; did not have sight of the patient’s care plan; was not given disclosure of evidence that was to be used against him in the disciplinary proceedings and didn’t intend to harm the patient.
Concluding that the method of checking bathing temperatures was neither foolproof nor safe, the tribunal found that Mr Antonio’s dismissal was undeniably unfair as no proper training was given nor was Mr Antonio a medical professional.
The appropriate redress was re-engagement and the tribunal concluded that Mr Antonio should be reemployed in the position he held immediately before dismissal or in a different position that would be reasonably suitable.
