Mr M Wiencek, consultant For the v Respondent — 2021

Mr Zielinski worked for Crystal Units Ltd as a machine operator from 21 May 2007 until his dismissal on 10 December 2019. The case arose after a 1 October 2019 incident in which he was not wearing PPE and had an altercation with Mr Hrisca. The tribunal found the respondent carried out a reasonable investigation into that incident and that the subsequent final written warning on 22 October 2019 was imposed because of proven misconduct, including abusive language and inappropriate gestures, rather than because of whistleblowing.

The tribunal found that the claimant’s oral complaints to Mrs Halai on 10 October 2019 were about Mr Patel only. It held that those complaints did not amount to protected disclosures because they did not tend to show a wider public-interest health and safety risk or a failure to comply with a legal obligation in the way required by section 43B ERA 1996. By contrast, the letter sent by the claimant’s solicitors on 28 October 2019 was accepted as a protected disclosure only under section 43B(1)(d) on health and safety grounds, and not under paragraphs (b) or (f). The tribunal said that, if it had needed to decide remedy issues, it would have found the disclosures were made in retaliation to disciplinary action and not in good faith.

The claimant’s whistleblowing detriment case failed because the tribunal found that the transfer to the larger site on 11 October 2019, the later warning, the further disciplinary proceedings, and the dismissal were all based on workplace concerns and disciplinary issues, not on any protected disclosure. The tribunal also rejected the contention that the final written warning was manifestly inappropriate. It found the respondent acted on the basis of a reasonable investigation and a genuine belief that misconduct had occurred.

On the dismissal claims, the tribunal found that the respondent reasonably believed the claimant had committed gross misconduct, including using his mobile phone on the factory floor, covertly recording colleagues and managers, attempting to contact Mr Hrisca while suspended, and using threatening or undermining behaviour towards Mr Ascinte. It held the dismissal was for gross misconduct, was procedurally fair, and fell within the range of reasonable responses. The automatically unfair dismissal claim and the ordinary unfair dismissal claim therefore failed. The wrongful dismissal claim also failed because the respondent proved gross misconduct on the balance of probabilities. The holiday pay claim was withdrawn, and no monetary award was made.