Lidl has been ordered to pay over €21,000 to a deputy manager who was unfairly sacked over discounting €7.20 worth of baked goods for himself to buy close to the end of his shift.
Arkadiusz Grzyb, who had nine years’ service at the supermarket, had his complaint under the Unfair Dismissals Act upheld in a decision published this morning.
He argued the goods were “stale” and would have been “written off and disposed of” - and that since he put a price of 20c on the goods in both instances Lidl had in fact made a “surplus” on goods which were to be dumped on a quiet evening.
Lidl’s solicitor Killian O’Reilly said the supermarket’s case was that two breaches of its cash management procedures were uncovered by an audit in October 2020.
He said Mr Grzyb was asked to view CCTV and invited to an investigation meeting in December 2020.
At the meeting he “admitted to a number of breaches of cash management and inventory control procedures” and the investigator determined the complainant had “a case to answer”, Mr O’Reilly said.
A disciplinary hearing followed on March 3, where Mr Grzyb admitted he knew what the right procedures were and apologised for his behaviour, Mr O’Reilly said.
The investigator ruled there had been a “fundamental breakdown of trust” and Mr Grzyb was dismissed on 15 March 2021 – with the decision upheld on appeal, Mr O’Reilly concluded.
The WRC heard that Lidl had found Mr Grzyb guilty of gross misconduct for theft due to non-adherence to cash management procedures, write off management and inventory control. However, Mr Grzyb said he only realised he was accused of theft after he saw the investigation report dated February 15th, 2021.
Mr Grzyb said Lidl has a “waste not” policy which sets a discount on poultry and meat products which are at their best before date which are still good to eat – and that he believed the same procedure could be applied to bakery goods.
He said he applied the “waste not” procedure to the bakery goods and bought them for 20c each – and as there were no discount stickers available he took a product priced at 20c and used this as an “equivalent price entry”.
He says what he did was to adapt a “common practice” in other stores to write off bakery goods earlier than designated because they were “stale”.
“Every evening the bakery items are written off and disposed of, with fresh bakery goods baked each day,” he said.
The hearing was told this happened on two occasions for goods with a full price of €7.20, 25 minutes before the close of business.
His evidence was that he only became aware he was being accused of theft when he saw the investigation report.
“The investigation into the complainant’s conduct was adversarial and was a predetermined investigation,” said solicitor Eamonn O’Hanrahan, who appeared for Mr Grzyb.
“The complainant was not informed he was accused of theft in the investigation but told he was accused of not complying with various procedures. He only became aware of this afterwards,” he added.
He argued Lidl failed to consider a “reasonable excuse” and argued it “could not be considered gross misconduct”.
He said his client was at an ongoing loss of €19,600 per year.
In her decision, published this morning, adjudicating officer Davnet O’Driscoll wrote that the supermarket’s procedures “provide the baked goods be disposed of at close of business each day as fresh bakery goods are baked daily”.
“There was little consideration of the complainant’s explanation for breach of the procedures, evidence from other witnesses of lack of clarity in the discounting practice, the complainant’s good service and low value of the bakery goods involved,” she wrote.
She noted a previous decision of the Employment Appeals Tribunal, which found that Dunnes Stores was entitled to stop a worker from taking a customer’s value club points – but that a dismissal for gross misconduct was not appropriate or proportionate.
Ms O’Driscoll found that Lidl’s dismissal of Mr Grzyb “does not come within the band of reasonable responses and is disproportionate” and ruled he had been unfairly dismissed.
She found he was at a loss of €23,461.50 – but reduced the award of compensation by 25% to €17,596.12 on the basis that Mr Grzyb had made a “contribution to his dismissal”.
She also upheld a complaint under the Payment of Wages Act, awarding a further €3,615.40 in respect of four weeks’ paid notice.