EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paolo Antonio
-claimant UD522/2013
Against
Brothers Of Charity Services Limerick
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr. W. O'Carroll
Mr F. Dorgan
heard this claim at Limerick on 2nd October 2014
and 20th November 2014
Representation:
_______________
Claimant: Mr Michael Purtill B.L. instructed by,
Frances Twomey & Co Solicitors,
80 O'Connell Street, Limerick, Co Limerick
Respondent: Thomas Wallace-O’Donnell B.L. instructed by,
Sweeney McGann, Solicitors, 67 O'Connell Street, Limerick
Respondent’s Case
The head of HR (BL) gave evidence. The respondent provides care to individuals with mental and physical disabilities. They operate a number of community and residential services which are heavily regulated and governed by HIQA. The claimant was a care assistant working in a residential house.
An incident occurred on the 21st of September 2012. The claimant was giving a service user (AB) a bath. When AB was removed from the bath 2 care assistants also in the bathroom noticed that AB’s feet were very red. The staff nurses were alerted and discovered that 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. AB was taken to A&E.
The manager (MoB) reported the incident to BL. The claimant was suspended immediately pending an investigation. The claimant was invited to a pre-investigation meeting; the allegation to be investigated was ‘Alleged serious misconduct by (the claimant) on the 21st of September 2012 resulting in the injury of (AB).’ Serious misconduct is defined in the respondent’s grievance and disciplinary procedure. As the investigation was to discover what had occurred on the 21st of September the precise allegation was only defined post the investigation. BL sent the claimant the preliminary investigation report of the 18th of October but due to an error did not retain a copy.
The invitation letter informed him of his right to bring a representative, enclosed the accident/incident report, MD’s (treating nurse) statement and MoB’s report on the service user and an injury/ treatment report for AB. The investigation team’s terms of reference was also given to the claimant before the meeting on the 8th of October 2012. At the meeting, the procedure was outlined and the availability of the employee assistance programme was communicated to the claimant again.
A terms of reference had been drawn up and given to the investigation team. The investigation team was made up of three senior staff. They compiled an investigation report which was given to the claimant for his comments.
PoK, a care assistant gave extensive evidence of the incident with AB and what transpired afterwards. She has never had a problem with the temperature of the water in the bath; she checks it by ‘dipping her elbow in.’ Thermometers were not used at the time to check the water temperature. PoK was not asked to speak to the disciplinary or appeal officers; the investigation officer did not ask if there were any problems with the bath or water temperature regulation. She does not recall informing new care staff that the enamel in the bath gets very hot and to be aware of it.
The nurse on duty (SH) gave detailed evidence of the events concerning AB. SH is not sure what the correct water temperature should be; she also tests the water with her hand. After the claimant’s dismissal thermometers were introduced to check the temperature of the bath water. There was a problem with the water in the house the claimant worked in. It could run cold or hot and had to be checked several times. MH, the other nurse on duty gave evidence of the incident. She also stated that there was a problem with the hot water being very hot coming from the bath tap. As part of normal training she would tell new staff to be careful of the water temperature in the bath. The clinical nurse manager (MD) gave evidence. On a previous occasion a resident (not AB) was red coming out of the bath; the care assistant was not dismissed as a result. There was no care plan in place for AB. MD, in her statement, relays that the water is very hot in the house. The GP (SOD) gave evidence of AB’s medical conditions. The fact that AB had bursitis would not make his feet more sensitive to hot water.
The clinical nurse manager (NF) based in a different respondent location undertook the investigation. After receiving all the relevant documentation NF interviewed all the staff who were involved with AB that day. On conclusion of the interviews NF rang the maintenance person regarding the water temperature. There was no problem with the water temperature in the house according to maintenance. NF did not check whether the enamel bath heated up and retained more heat possibly causing the fluctuation in water temperature. NF did not consult a professional in relation to the enamel bath as she felt she had established all the facts. NF is not aware if the staff got any training in relation to the appropriate water temperature for baths. NF was not aware of a previous incident where ‘someone was red coming out of the bath.’
NF made her preliminary conclusions on the 18th of October and gave the claimant an opportunity to respondent to the report at a meeting on the 25th of October 2012. The claimant said the incident with AB was an accident, he checked the water temperature, that there were Health & Safety concerns with the timeframe in which maintenance responds to faults, the house was in need of modernisation including replacing old enamel baths with plastic baths. The claimant did not intend any harm.
The investigation conclusion was that ‘the claimant’s failure to adequately check the water resulted in the burns sustained by AB because the claimant recognised the need to check the temperature of the bathwater.’
A number of recommendations were made as a result of the investigation:
‘d. bathing guidelines should be developed and contained within a care plan for AB.
e. signage should be placed in the bathroom alerting staff to the high temperature of the water…
f. water thermometers should be used when drawing baths’
A senior manager (NR) was the disciplinary officer. As a senior manager the incident was reported to NR when it happened and she was informed of the steps taken. After reading the investigation report NR invited the claimant to a disciplinary meeting; she didn’t review any additional documentation. The two aspects that ‘struck’ NR were the severity of the burns and the claimant failing to notice the burns. The disciplinary meeting took place on the 16th of November 2012. The meeting was adjourned at 12.10pm so NR could consider the claimant’s response and to check his training records. (NR ‘doubts’ that the meeting started at 12.00pm). NR was satisfied that the claimant had received adequate training. The claimant said he had checked the water temperature and that AB was the first to use the bath after a water problem had been fixed.
The disciplinary meeting re-convened at 2.25pm. NR informed the claimant that after consideration, she found;
‘that on the balance of probabilities (the claimant):
(1) Did not check the temperature of the water which is gross negligence and serious misconduct
and
(2) Did not notice the red marks and did not report the injuries which is also gross negligence and serious misconduct.’
NR informed the claimant that these two incidents would be an unacceptable risk for the future and consequently she has no option but to terminate his contract of employment. The dismissal letter was given to the claimant at the meeting. No lesser sanction was considered as the service users are ‘too vulnerable.’
NR did not inform the claimant that no.2 above was an allegation that could lead to dismissal and accepts that the allegations against the claimant were not outlined to him in the invitation to the disciplinary hearing. NR did not interview anyone as part of the disciplinary process, her decision was based solely on the meeting and the investigation report. Although NR accepts that the incident was unintentional and an accident, she believes that it was neglect and therefore it warranted dismissal.
The Director of Services (NB) conducted the claimant’s appeal. She listened to everything the claimant had to say in his defence. Great emphasis was placed on the claimant’s previous clean record. NB then discovered an expired final written warning for the claimant; the warning did not influence NB’s decision but the misrepresentation of his clean record did. NB concluded that the water in the bath was not mixed correctly and she therefore upheld the decision to dismiss the claimant. By letter of the 19th of December 2012 the claimant and his representative were informed of this decision.
As the bath was not mentioned as a ground of appeal NB did not look into the possibility that the enamel could have caused the burns or affected the water temperature. She was not aware of a recent similar incident that took place. NB did not keep minutes of the appeal meeting.
Claimant’s Case
The claimant gave evidence of his long work experience. The claimant never received any training on how to check the water temperature; he swirled his un-gloved hand in the water and it was fine. The claimant never saw a care plan for AB or was aware that he had bursitis. The claimant took AB out of the bath and dressed him and he did not notice any blisters only slight redness that was normal after a bath. There was no intent to harm AB, it was an accident that the water was too hot due to the water/bath problems.
The claimant did not receive the preliminary investigation results before the investigation meeting. The disciplinary meeting lasted 10 minutes and 15 minutes respectively.
The claimant gave evidence of his loss and attempts to mitigate his loss.
Determination
The claimant was very experienced in his role as a care assistant and enjoyed a good relationship with his colleagues and management. The respondent accepts that there was no care plan in place for AB and there is a marked absence of full and proper record keeping in the respondent. It is clear to the Tribunal that the method used to check the water temperature in the bath was not safe or fool proof to the extent that the respondent has now implemented new procedures for testing the water. In addition, the Tribunal is in no doubt that extraneous matters were taken into consideration when making the decision to dismiss the claimant but these matters were not put to the claimant.
The claimant’s dismissal is undeniably unfair. The Tribunal have every sympathy for the administration involved in the profession but the respondent acknowledged that no training was given to the claimant; he is a care assistant not a medical professional. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
The Tribunal find that the appropriate redress is re-engagement as prescribed in Section 7 (1) (b) of the Unfair Dismissals Act 1977;
‘Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.’
The Tribunal also determines that it shall be a term of such re-engagement that for all purposes other than the payment of remuneration and accrual of holiday rights, his continuity of service from the 20th of May 2005 to the 16th of November 2012 shall be preserved.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)