Mr. B Pieniecki v Fresh & Wild Limited — 2022

Mr B Pieniecki was employed by Fresh & Wild Limited as a Receiver from 16 February 2016 until his summary dismissal on 30 December 2019. The tribunal accepted that on 6 December 2019 there was an altercation with his supervisor, Simon Tsegay, in the loading bay, that the Claimant was restrained by colleagues, and that he later went into the warehouse office where he shouted "liar". It also found that he had lost his temper, called Mr Tsegay a "lazy bastard", and was still upset during the events that followed.

The tribunal held that the Respondent had a potentially fair reason for dismissal, namely misconduct, and that Mr Doherty and Ms Combs held a genuine belief in the Claimant’s misconduct on reasonable grounds. It relied on the CCTV footage, the Claimant’s admissions in the investigation and disciplinary meetings, and the witness material gathered during the investigation. The tribunal accepted that the Respondent could properly view the conduct as falling within its gross misconduct policy, which covered physical violence or threatened violence, inappropriate conduct or assault against a colleague, and offensive behaviour.

On procedure, the tribunal found that the Respondent conducted a preliminary investigation, formal investigation, disciplinary hearing, reconvened disciplinary hearing, and appeal. It accepted that not every statement gathered in the preliminary investigation was provided to the Claimant in advance, but found this did not make the process unfair because the key points were put to him, later witness accounts were disclosed, and the more peripheral material did not alter the main issues. The tribunal also found that the failure to obtain a statement from Artur Ptak before dismissal did not render the investigation unfair, particularly because the appeal stage considered that point and concluded it would not have changed the result.

The tribunal further found that the absence of a translator at the appeal hearing did not make the procedure unfair because the Claimant was able to present his appeal and answer questions effectively. It concluded that the Respondent acted within the range of reasonable responses in deciding to dismiss, even though it accepted there had been some provocation and some mitigation. The unfair dismissal claim was therefore dismissed and no award was made.