Zawadzki v. The Co-operative Group

Unfair dismissal: A claimant was unfairly dismissed despite his employer’s zero-tolerance policy on bullying and harassment in the workplace, and in circumstances where he had admitted to making inappropriate noises (including orgasmic sounds and mimicking Michael Jackson) at work. These actions led to a complaint from a colleague who believed the noises were directed at him and were racist in nature.

The ET acknowledged that the employer was entitled to enforce its policy and had followed a proper disciplinary process, but concluded that dismissal for gross misconduct was not a reasonable response in the circumstances. There was no evidence of race discrimination or that the claimant’s behaviour was targeted at any individual. Additionally, the claimant was visibly upset and remorseful upon learning he was accused of racial bullying.

The ET determined that it was unreasonable for the employer to expect employees to know that inappropriate, juvenile, or embarrassing behaviour that was not discriminatory would constitute gross misconduct.

Although this is only an ET decision, the case is a reminder to employers with zero-tolerance policies that any sanctions imposed must be proportionate to the actual conduct in question.