Sacking of Lidl worker for handing out yoghurt drinks found to be ‘disproportionate’

Lidl has been ordered to pay €4,000 to a man it sacked for drinking a yoghurt drink from a damaged multipack after a ruling that the sanction was “disproportionate”.

Giving evidence in a challenge to his dismissal, ex-customer assistant Seán O’Reilly told the Workplace Relations Commission that he handed out the fermented Yakult yoghurt drinks to his colleagues to “boost morale” among staff working in the supermarket’s branch in Gorey, Co Wexford, during Christmas week in 2020.

The employment tribunal heard the store’s manager regarded the probiotic yoghurt drink incident to be a “very serious” matter – with the supermarket’s management ultimately concluding after a six-month investigation and disciplinary process that Mr O’Reilly was guilty of gross misconduct.

The store manager, Darius Kacinskas, said in evidence that he discovered a “half-empty” bottle of Yakult on a pallet while talking to a duty manager and questioned the man about it.

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The duty manager said Mr O’Reilly had given it to him and that he “didn’t think in the moment to question where [Mr O’Reilly] had got the Yakult drink from”, Mr Kacinskas said in evidence.

Mr O’Reilly’s response to being asked about the Japanese yoghurt drinks was an “immediate acceptance, apology and purchase of the goods later in the day”.

The store manager said only he had the authority to sanction goods to be written off and that Mr O’Reilly’s actions had been a breach of company policy.

In the investigation which followed, the tribunal was told Mr O’Reilly accepted that he understood the company’s write-off procedures and freely admitted that he did consume one of the drinks and gave others out to his colleagues.

Mr O’Reilly told the tribunal that a number of his colleagues were “feeling ill” on the date of the incident, December 28th, 2020.

He gave out the Yakults “in an effort to boost morale” as he “thought he was benefiting the staff to help them get through the day”, Mr O’Reilly said.

The complainant, who represented himself at a hearing last October, said he did not drink the yoghurt drink “maliciously or in bad faith” and “didn’t think by consuming it he was causing any harm”.

He further argued that the rules on writing off stock “were at times not adhered to”.

The complainant called two former colleagues, John Larkin and Thomas O’Connell, to give evidence – with both stating that they had witnessed staff in other Lidl stores consuming goods due to be written off.

Mr O’Connell added that the consumption of goods by a worker at another Lidl store prior to purchase had been dealt with by way of a verbal warning.

The outcome of Lidl’s disciplinary process was delayed after Mr O’Reilly lodged a dignity at work complaint against his boss, the store manager Mr Kacinskas, the tribunal was told.

The complainant was dismissed on July 9th, 2021 and his sacking was upheld on appeal.

Lidl’s solicitor, Killian O’Reilly of Fieldfisher, said if Lidl was to adopt a “more lenient approach” to matters such as the Yakult incident it could have a “knock-on financial effect on its business model”.

Counsel said the dismissal was “procedurally and substantially fair” and was the result of a “comprehensive investigation, disciplinary and appeal process”.

In his decision, published on Wednesday, WRC adjudicator Paul McKeon wrote that he was “not convinced” that the evidence presented by the complainant side’s witnesses established that the rules on consuming damaged goods were not adhered to at Lidl Gorey, as they had referred to other stores.

Mr McKeon said he was not satisfied due consideration had been made by the supermarket to the “low monetary value” of the yoghurt drinks.

The adjudicator added that Lidl had given “little consideration” to Mr O’Reilly’s “immediate acceptance, apology and purchase of the goods later in the day”.

“For gross misconduct to occur it must be something very serious indeed, perhaps criminal or quasi-criminal in nature,” Mr McKeon said, calling dismissal for gross misconduct “disproportionate”.

However, he found Mr O’Reilly had failed to provide enough evidence of his job hunt following the dismissal to demonstrate “adequate efforts to mitigate his loss” as the case law required.

The complainant had been in employment from October 2021 to July 2022, the tribunal noted, but only provided a screenshot of an email folder in submissions on mitigation, the tribunal noted.

As the complainant had also “undoubtedly” contributed to his dismissal, Mr McKeon wrote that €4,000 in compensation was “just and equitable” in the case and made an order against Lidl for the sum.