THE IRISH ARM of German discount retailer Lidl has been ordered to pay €4,000 compensation for the unfair dismissal of a Gorey store worker for consuming a Yakult drink without paying for it.

At the Workplace Relations Commission (WRC), adjudicator Paul McKeon has ordered Lidl Ireland GMBH to pay Sean O’Reilly €4,000 for his unfair dismissal after finding that no reasonable employer would have dismissed O’Reilly in such circumstances.

McKeon described the decision by Lidl Ireland to dismiss O’Reilly as “disproportionate”.

At hearing, O’Reilly stated that he gave damaged Yakult probiotic drinks to colleagues on 28 December 2020 in order to boost morale as a number were feeling ill and he consumed one himself.

In his findings, McKeon stated that on close review of the nature of the misconduct, the low monetary value of the goods consumed and O’Reilly’s early admission of guilt, “it is clear that a lesser sanction would have served as an adequate deterrent for the purpose of preventing this type of misconduct from re-occurring in the future”.

McKeon stated that during the hearing, he found O’Reilly’s evidence credible that he acted without malice and that there was no ill-intention and little benefit on his part for consuming the Yakult product on 28 December 2020.

McKeon stated that a final written warning on O’Reilly would have served the purpose of preventing this action from occurring in the future.

In his decision, McKeon did note also that O’Reilly “has undoubtedly contributed to his dismissal”.

Evidence

O’Reilly commenced working for Lidl at its Gorey outlet in July 2019 and was dismissed in July 2021 for gross misconduct arising from the Yakult drink incident.

In evidence of behalf of Lidl, store manager Dariusz Kacinskas stated that after coming across a half empty bottle of a Yakult drink placed on a loading pallet, he approached O’Reilly who confirmed that he had not purchased the Yakult drink.

Kacinskas gave further evidence that the reason given by O’Reilly for consuming the product in question and distributing a number of them to other staff members was because they were due to be written-off and put in the write-off area.

Kacinskas added at the hearing that O’Reilly did not write off the items in question, and instead he took one for himself and also distributed the others to staff members.

Lidl told the WRC hearing that that the position of customer assistant requires a significant amount of trust and what is also of equal importance is due to its business model as a discount retailer.

The retailer added at hearing that if it were to take a more lenient approach to incidents in which a staff member had consumed goods without prior purchase this could have a knock-on financial effect on its business model therefore it was paramount staff were aware of the consequences and outcome of such actions.

Solicitor for Lidl, Killian O’Reilly of Fieldfisher, told the hearing that the dismissal of O’Reilly was both procedurally and substantially fair and submitted that O’Reilly was only dismissed on foot of a comprehensive investigation, disciplinary and appeal process.

O’Reilly

O’Reilly represented himself at hearing and told the WRC that on 27 December a number of Yakult drinks had become damaged on a pallet.

He said that on the following day, he realised the damaged Yakult drinks were still on his pallet as he had forgotten to discard them and as a number of the staff on the date of the incident were feeling ill, he made a decision to distribute some of the remaining Yakult drinks to other staff members and consumed one himself.

O’Reilly said that he did this to boost morale and he thought he was benefiting the staff to help them get through the day.

He further stated the goods in question were going to be written off as the packaging was damaged and he had paid for the goods thereafter.

O’Reilly also submitted that the decision by the employer to terminate his employment on the grounds of proportionality and reasonableness is unfair.

He further submitted that his conduct did not amount to gross misconduct.

He submitted documentation to show that he secured new employment from 1 October 2021 to 9 July 2022.

In calculating the level of compensation, McKeon noted that Sean O’Reilly did not provide evidence of his efforts to seek work following his dismissal that demonstrate adequate efforts to mitigate his loss.