Moonwalked Out of the Door? Employee Unfairly Dismissed for Making Michael Jackson “Hee-Hee” Noises

• Mr Zawadzki was employed as a warehouse operative from 7 December 2015 to 7 March 2024.
• In December 2023, a colleague (named SM), who is black, reported to management that Mr Zawadzki had been impersonating the singer Michael Jackson by raising his voice in a very high-pitched tone and had made monkey noises.  
• During an investigation meeting, Mr Zawadzki denied impersonating Michael Jackson and denied making monkey noises. He admitted to making grunting and moaning noises and agreed that these could be described as “orgasmic” and that this behaviour was not appropriate in the workplace. He firmly denied any racist behaviour and stated that he never intended to bully or cause distress to SM. He also said that in the 18 months that he had worked with SM, SM had never given him any sign that he had been upset or harmed.
• The company did not hold any further investigation meetings with SM.
• Mr Zawadzki was invited to a disciplinary hearing on 29 February 2024. The invite letter confirmed that the purpose of the allegation was to consider the allegation of gross misconduct, namely that he had breached the company’s bullying, harassment and discrimination policy, specifically by making inappropriate comments to a colleague, causing hurt and distress.
•  At the disciplinary hearing, Mr Zawadzki was asked to make the noise which he admitted to making, which the dismissing officer described as “embarrassing”. Mr Zawadzki accepted that it was inappropriate and juvenile to make the noise in the workplace, but that if he heard those noises, he would not think they were directed at him or that they were racist. He explained that he was not the only one to make those noises, that he had not received any training on the bullying and harassment policy and that his intention was never to make anyone feel bad.
• Mr Zawadzki was dismissed without notice. He appealed that decision. However, the appeal hearing did not substantively progress, and so the previous decision to dismiss was confirmed.

Employers should use this decision as a reminder to apply disciplinary procedures carefully, with clear policies, fair investigative practices and ensure that any decision is backed up with evidence.

In particular, employers should ensure:

• The impact is evidenced - Before dismissing, employers should ensure there is clear evidence that the behaviour caused actual offence, harm, or workplace disruption, not just that it was odd or juvenile.
• Matters are dealt with promptly - Disciplinary action becomes harder to justify if the allegedly offensive behaviour went unchallenged over time.
• Policies are effectively communicated - Zero‑tolerance policies only work if employees are made aware of them and, where appropriate, relevant training is provided.
• The response is proportionate - Dismissal may be unjustified if the conduct, though inappropriate, is not severe and was not shown to have a genuine impact on others, especially if others have not been disciplined for the same issues.
• Procedural fairness – Employers should document clear disciplinary processes, ensure warnings or informal discussions occur where appropriate, and ensure that appropriate investigation occurs, following up on matters that may need further clarification.