This decision of the Fair Work Commission discloses how the dismissal of an employee can be found to be relevantly unfair, and in this case warrant a reinstatement of employment order, because according to the Commission’s decision “It was unreasonable because there was no valid reason as Ms McFadden’s conduct did not justify dismissal. It was unjust because Ms McFadden was targeted for breaches of a workplace procedure in circumstances where there was substantial non-compliance with the procedure by others and those breaches were not investigated. There was also an element of prejudgment in investigation. It was harsh on Ms McFadden given her length of service unblemished record and its impact on her personal circumstances. Each of these factors separately lead to a satisfaction that the dismissal was unfair. Taken together I am well satisfied that the dismissal was unfair.”
Remedy
[92]
Ms McFadden seeks orders for reinstatement, continuity of service, and lost pay. Ms McFadden states her dismissal was unfair, that she had an unblemished record, and that her personal and family circumstances made reinstatement the most appropriate remedy. She.
“Introduction
[1]
Ms Linda McFadden was dismissed by Mars Australia Pty Ltd (Mars) on 10 December 2025. She applies pursuant to s. 394 of the Fair Work Act 2009 for an unfair dismissal remedy. She asks that she be reinstated including orders for lost pay and that her service be regarded as continuous for all purposes. There is no issue that Ms McFadden was protected from unfair dismissal. In determining whether she is entitled to a remedy the only issue to be determined is whether her dismissal was harsh, unjust or unreasonable. Mars opposes the application contending the dismissal was not unfair. It also opposes reinstatement should the dismissal be found to be so.
[2]
At hearing both parties were given permission to be legally represented. Ms McFadden provided a witness statement. She was cross examined. Mr Mark Diamond, Solicitor, provided a witness statement annexing relevant documents. He was not required for cross examination. Ms Michelle Hamilton who is responsible for Human Resources and Associate Relations, provided a statement. Ms Hamilton was cross examined. Mr Daniel Firth, Plant Manager, provided a statement. Mr Firth was cross examined. Ms Kavita Yadav, Quality and Food Safety Specialist, provided a statement. Ms Yadav was cross examined. Mr Carlos Johnson, Mint Pressing Operator, provided a witness statement. Mr Johnson was cross examined. Mr Jason Wayne Matthews, also a Mint Pressing Operator, provided a witness statement and was cross examined.
[2026] FWC 2772
DECISION
[2026] FWC 2772
2
[3]
Mars manufactures confectionary, including mints, in a factory in Asquith a northern suburb of Sydney NSW. Ms McFadden worked as a supervisor or team leader in the factory. Ms McFadden was dismissed after an incident where a large carton containing peppermint mints was punctured by a forklift on a production line. Ms McFadden was the supervisor on the day of the incident. Ms McFadden was notified of the incident. She assessed the situation and was involved in decisions regarding the handling of the potentially contaminated product. The Respondent’s quality and food safety specialists were also consulted and provided guidance on what should occur. After discussion it was agreed that half of the mints in the carton should be discarded. Concern arose about the process that followed as the agreed position was not implemented. An internal investigation was conducted raising issues over compliance with food safety standards. The investigation resulted in Ms McFadden being dismissed. Based on the material before the Commission, I have found that Ms McFadden was unfairly dismissed. I have, for the following reasons, decided to order that she be reinstated with associated orders for back pay and continuity of service.
Background
[4]
Ms McFadden commenced employment with the Wrigley Company as a permanent full-time Quality Assurance Technologist on 17 June 2002. In 2012, she was promoted to Continuous Improvement Manager. After Mars acquired Wrigley in 2018, her employment transferred to Mars. In May 2020, her title changed to Supply Excellence Technician due to a restructure. On 2 September 2024, she was promoted to Team Leader Skittles-Mints, a role in which she managed 15 employees and four manufacturing lines. She worked an average of 40 hours per week. She had not received a disciplinary warning or been subject to any disciplinary action prior to the incident that led to her dismissal. She had never been placed on a performance improvement plan during her employment.
[5]
The forklift incident occurred on 14 October 2025 in the pressed-mints manufacturing area of the factory. It was late in the day, Mr Johnson was using a small fork lift, also known as a hand truck, to move a large carton or transcase of hard-pressed peppermint mints. The carton contained around 850 kg of mints. While attempting to insert the tynes of the forklift into the pallet at the bottom of the transcase, Mr Johnson accidentally punctured the carton to a depth that the mints were exposed. This raised immediate concerns about potential contamination. Ms McFadden, as Team Leader, was notified of the incident immediately. She conducted an initial assessment. She consulted with Ms Yadav who had responsibility as a food safety specialist. Ms Yadav came to the shop floor and together with Ms McFadden inspected the transcase. There were discussions about what to do. Ms Yadav’s initial recommendation was to quarantine and dispose of the entire transcase due to the high food safety risk. Ms McFadden believed that only the bottom portion was affected and considered it possible to salvage most of the product. After discussion, the two agreed to a compromise being half of the product could be saved, and half should be disposed of. The transcase was quarantined until the following day when the recovery of the product took place.
[6]
There was some contest in the evidence about these events. The focus of the contest was who said what to whom when about what was to happen to the product inside the transcase. There are different accounts in the witness statements about this. I was provided with video footage of the incident and the events that followed including; Ms McFadden’s inspection, Ms Yadav’s arrival on the shop floor, the inspection of the transcase by Ms McFadden and Ms
[2026] FWC 2772
3
Yadav, and the discussions that followed. The footage showed a discussion between Ms McFadden, Ms Yadav, Mr Johnson and Mr Matthews on the floor of the factory after the inspections. The video footage did not have audio. Ms McFadden says that Mr Johnson and Mr Matthews were present when the agreed position was reached and it was clear that half would be discarded. Mr Johson and Mr Matthews contend they were not told to discard, half and they were only given vague instructions about what was to be discarded.
[7]
Mr Johnson was not involved in the salvage operation. It occurred the following day, his day off. Mr Mathews was involved. Mr Matthews says that at the beginning of the shift Mr Matthews and another operator, Mr Zhao, were asked by Ms McFadden to sort and quarantine the mints. Ms McFadden states that she did not give any instruction about discarding the material on 15 October. She said she expected the operators would sort the mints in accordance with the usual procedures. She noted that they were aware of the agreed position from the previous day that when the product was sorted half should be kept and half discarded.
[8]
Mr Matthews states he was told by Ms McFadden on the morning of 15 October to keep salvage the product from the transcase and to “avoid the affected area”. He says he was not given a specific quantity to remove. Mr Zhao did not give evidence. CCTV footage, without audio, was provided of Ms McFadden’s having a discussion with the men prior to starting work on 15 October. The video shows Ms McFadden was present at around 6:16-6:20 am and spoke to the men. She then left. She was not present during the sorting of the product, which took no more than 10 minutes, and was completed by 6:56am. As it turned out, Mr Matthews and Mr Zhao scooped approximately 400kg of the mints from the transcase and only 80kg was discarded. The 80kg was labelled for quarantine and set aside to be discarded and the 400kg which was recovered was scooped into another carton and was released for distribution.
[9]
Ms McFadden was copied into an email about the incident at 7:25am on 15 October 2025. The email had a subject matter “Pierced transcase non con”. It was sent by Mr Shane Hawkins, a leading hand who reports to Ms McFadden. It was sent to six people. It was addressed to “Adam/Lucas”. Adam is Mr Adam Meares who was responsible for handling the physical movement and inventory management of product. He processes the blocking, unblocking, and transfer of product involved in non-conformance incidents. He receives emails on non-conformance and is required to complete steps in what was described as the “hold and verification” process. Lucas is Mr Lucas Kennedy was also a Material Handler working alongside Mr Mears. He was responsible for processing non-conformance templates, placing product on hold and completing verification steps in the company’s computer systems referred to as SAP and Nexus. SAP is the inventory management system used to control and track the movement of materials and products within the factory. SAP is distinct from Nexus, which is the non-conformance reporting and approval system. Nexus manages the investigation and approval of workflows arising from non-conformance events.
[10]
Mr Kennedy had earlier generated a non-con template in Nexus at 12.35am on 15 October 2025. It was for the full transcase of 480 kg and the effect of that was that the product was blocked in the SAP.
[11]
Mr Hawkins’ 7.25 am email attached a form specifying that only 80kg of product was on hold due to the hand truck piercing the transcase. The 80kg was contrary to the agreed position to dispose of half the product, about 240kg. The email did reflect the outcome of the
[2026] FWC 2772
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actions taken by Mr Matthews and Mr Zhao to shovel 400 kg of product into a new transcase and leave 80 kg in the original carton to be discarded. The email itself did not contain the quantities, but the attachment showed only 80kg was being held, not the full 480 kg or that quantity as agreed by Ms McFadden and Ms Yadav. Ms McFadden did not read the attachment to the email and so failed to pick up the discrepancy in the report.
[12]
Ms McFadden said that she first knew the agreed position had not been followed when Mr Matthews told her after the work was complete that he had taken out “a bit more than half” of the product. She said he did not provide an exact figure. She says she responded that she would inform Ms Yadav. She said she did not become aware of the exact numbers until later. Mr Matthews says he told Ms McFadden on 15 October 2025, after the sorting, that 400kg had been saved and 80kg scrapped, and he communicated this clearly and directly. I prefer Ms McFadden’s account of this conversation as it is consistent with other actions that she took and I was not convinced that Mr Matthews recollection of events was as reliable as Ms McFadden’s.
[13]
Ms McFadden said she went to see Ms Yadav at her desk and told her that the operators had removed a bit more than half of the product. According to Ms McFadden, Ms Yadav replied “Oh, OK” and did not issue further instructions.
[14]
Ms Yadav said that on 15 October, after she saw Mr Kennedy’s non-conformance template and noticed it recorded the full 485kg as being on hold to be destroyed, which did not reflect the agreed position, she sought out and asked Ms McFadden about the actual quantity that had been kept. Ms Yadav said Ms McFadden did not directly answer her question about what was saved and what was scrapped and instead indicated the template should be processed as it was.
[15]
At 3:33 pm Ms Yadav created a non-conformance report in Nexus for the entire 485kg of product in the transcase. An automatic email was generated by the company’s Nexus computer program which was sent to an email group described as “Asquith_On_Hold”. This group included Ms McFadden, Ms Yadav, Mr Mears, and Mr Hawkins. Ms McFadden said she did not read the report until 17 October 2025. The body of the email included the following:
HI,
This email is to notify you that Nonconformance — NonCon413488 is processed by Yadav, Kavita. No
additional action required from your end.
Location: Mars Inc : Mars Wrigley : GEM-BU :ASQ
Incident Title: Mints Pressing – Handtruck Tynes Punctured the Transbox with Product
Details of Incident: Non – Conformance Incident
Product on Hold HP Pepp Mint
Material Number (SAP) 1534384
Batch Number 54ZBlASQAT
Qty on Hold 485KG
QA Labelled YES
Physical Location WH2 QUARANTINE
Blocked in SAP YES
Reason for Hold HANDTRUCK TYNES PUNCTURED BOX.
Product Details:
[2026] FWC 2772
5
Product Description: 1534384 – ECL PEP Mint WIP 0.725g Affected Quantity: 485.0 Unit of Measure: Kilogram
(KG)
Batch Details:
Product: 1534384 Batch: 54ZBlASQAT
Comments : – NA
Due Date : Oct 16, 2025
Current Phase : Hold / Verify Hold Effectiveness
[16]
Ms Yadav said she understood that all of the product was to be destroyed and that she did not have an issue with that as it had been her preferred position when inspecting the transcase the day before.
[17]
It is evident from the above that the non-conformance templates and reports created in the company’s Nexus system did not accord with what had happened to the product. I note that Ms McFadden was not involved in recording the events on Nexus, but she was copied in, and the actual physical handling did not match the agreed plan.
[18]
So far as the differences in the evidence about the events of the 14th and 15th of October 2025 are material, I find that Mr Johnson was present during the discussion between Ms McFadden and Ms Yadav on the floor of the factory on the 14th and did hear the agreed position that half of the mints could be salvaged. Initially, he said he heard it during the inspection, but later said it was in Ms Yadav’s office. Ms Yadav stated that Mr. Johnson was not present in her office that day. She confirmed that she only saw Mr Johnson and Mr Matthews after Ms McFadden raised the incident on the floor of the factory, not in her office. Mr Johnson did not appear to have a clear recollection of the events. Mr. Johnson’s evidence about what he heard on 14 October was inconsistent with other evidence and is unreliable. This is material as it goes to when Mr Matthews heard the agreed position.
[19]
Mr Matthews stated that he was present during the inspection on 14 October but was not involved in the conversation where the agreement to save half and destroy half of the product was made. He said that he was later instructed by Ms McFadden to ‘scoop some out of the top’ without specific guidance on quantities, and that he would have followed an explicit instruction to remove only half if it had been given. In his evidence, Mr Matthews claimed that Ms McFadden gave a vague direction regarding the handling of the product at the beginning of the shift on 15 October. Mr Matthews was shown the CCTV footage and asked to identify the moment when Ms McFadden gave a direction about the product. He initially insisted that she pointed when she gave the direction, but when the video did not support this, he changed his evidence and said it could have happened at a different time, possibly later. Ms McFadden denied Mr Matthews account and denied she gave an instruction on the morning of 15 October along the lines that he was to “just scoop some out of the top” or at all.
[20]
Unlike Mr Matthews, Ms McFadden gave confident evidence. Her account accorded with earlier accounts she had given. It was consistent with the CCTV footage in so far as the footage did not show her pointing or otherwise directing the operators attention to the quarantined transcase. I find that Ms McFadden did not give a direct instruction about what was to be done with the affected product on the morning of 15 October 2025.
[2026] FWC 2772
6
[21]
Ms McFadden also disputed claims by Mr Matthews that he did not know about the agreed position. She maintained that he was aware of the position on the day of the incident. I find that Mr Matthews was present during the discussion on 14 October and knew that it had been agreed that half of the mints were to be discarded. Mr Matthews recollection of the events was unreliable. His responses to questions about the meetings and conversations were uncertain and his demeanour suggested he did not want to answer the questions asked, leading him to appear evasive. I prefer the evidence of Ms McFadden which was clear, and her responses to questions about the events were well considered and confident. When Mr Matthews sorted the product the following day he was aware that half was to be kept.
[22]
On 15 October there was misunderstanding on a number of fronts about what had actually happened to the mints. At 12.35 am Mr Kennedy’s template had 485 kg on hold. The attachment to Mr Kennedy’s email of 7:25 am had 80 kg on hold. The SAP system records the stock movement for the product. The SAP computer records show that Mr Mears made a number of entries on 15 October 2025. Mr Kennedy’s initial entry blocked 485 kg. Mr Mears changed the block to 80 kg, based on Mr Hawkins email. He then made a series of entries including the transfer of the full 485 kgs within the plant, followed by a further block of the full amount, then another block of the 80kg. It looks like Mr Mears knew about the quantities that had been sorted. It might be inferred that Mr Matthews was mistaken and that he did not tell Ms McFadden about the quantities sorted but rather told Mr Mears. Perhaps Mr Matthews told Mr Hawkins who recorded 80kg on hold in the attachment to his 7:25 am email. It may also be that the attachment to Mr Hawkins email included an incorrect entry due to a typographical error. These matters were not investigated by Mars.
[23]
The significance of this is that the differences in the accounts of Ms McFadden and Ms Yadav of their conversation on 15 October forms part of the general confusion. When Ms Yadav turned her attention to the 12:35am email and noticed that 485kg of mints was on hold she wondered why the agreed position had not been recorded. The simple answer may have been Mr Kennedy was not aware of the agreement. Ms Yadav spoke with Ms McFadden about the discrepancy. I find that it was likely that Ms McFadden who expected the agreed position would be followed told Ms Yadav that it had and when the Nexus record was created Ms Yadav decided to follow Mr Kennedy’s template. Ms Yadav suggests this was at the urging of Ms McFadden. Whether that is the case or not Ms Yadav was aware of the confusion and did not escalate it to her manager Mr Barnsley. It would have made sense for her to do so as Mr Barnsley had approved the agreed position the day before. Another explanation is that Ms Yadav concluded that even though the product had been sorted, the whole of the product should have been recorded on hold until the process was finalised. The evidence before the Commission is insufficient to draw a firm conclusion on this.
[24]
I find on the evidence available that Ms McFadden told Ms Yadav that the mints had been sorted with over half being kept and did so believing the agreed position had more or less been followed. Ms Yadav then prepared the Nexus record but did so by following the quantities in Mr Kennedy’s draft template. The result was Nexus generated the 3:33pm email recording that 485 kg of product was on hold. The result being that the Nexus system proceeded on the basis that the full transcase was still under quarantine.
[25]
On 16 October, Mr Mears moved 405kg of the product from “blocked” to “within plant” in SAP, effectively releasing it from quarantine. This step allowed the product to be moved
[2026] FWC 2772
7
from the manufacturing line to the packaging line, and potentially into circulation, without further approvals.
[26]
On 17 October 2025 at 8:34 am, Ms McFadden emailed Ms Yadav asking her to include Mr Mears on the non-conformance report so the product could be released. Ms Yadav replied that the matter had been moved to Mr Barnsley for approval. Records show that between 21 and 24 October 2025 steps were completed in Nexus by Mr Kennedy and Mr Mears, indicating that the product should be held and verified. This conflicted with the earlier indication that the product already being released. The records also show that on 24 October Ms Yadav recommended disposition of 485kg to be destroyed with Mr Barnsley approving the destruction in Nexus. On 28 October 2025 Mr Mears completed a “Verify Execution” in Nexus, indicating the product was destroyed, though most had already been released.
[27]
During Mr Firth’s evidence it became clear that the salvaged product had been released to be distributed but Mars was able to retrieve it and it was discarded.
[28]
Mr Doolan is the Value Stream Manager at the factory. He was told on 4 November 2025 that there had been a food safety incident on 14 October 2025. Mr Doolan conducted a preliminary investigation into the matter and spoke with Ms McFadden, Ms Yadav, Mr Johnson Mr Matthews and Ms Zhao. Ms Hamilton, People and Organisation and Associate Relations Manager, spoke to Mr Doolan on 7 November 2025 about his investigation and together they decided that Ms McFadden’s responses to Mr Doolan during his preliminary investigation warranted a formal investigation. Her responses raised serious concerns regarding her understanding of, and insight into, the potential risks and impacts associated with product contamination events. Ms Hamilton said her concerns arose due to Ms McFadden’s statement that “we throw away too much stuff”. Mr Doolan and Ms Hamilton decided to suspend Ms McFadden on full pay pending further investigation and to issue Ms McFadden with a show cause letter.
[29]
On 11 November 2025 Ms McFadden was provided a show cause letter. The letter notified Ms McFadden of serious concerns regarding her conduct during the food safety incident involving the punctured transcase of mints. The letter alleged that Ms McFadden failed to follow Mars’ non-conformance and food safety procedures by not properly quarantining or disposing of potentially contaminated product and not escalating the issue as required. The letter detailed the events of the incident and the risks posed to product safety and the company’s reputation. Ms McFadden was invited to attend a meeting on 13 November to address the allegations. She was asked to provide any written response prior to the meeting. The letter said that her response would be considered before any disciplinary action was taken. The letter made clear that the possible outcomes included disciplinary action up to and including termination of employment. She was told she could have a support person attend the meeting. Ms McFadden was suspended on full pay while the process was followed.
[30]
In the days after receiving the letter Ms McFadden raised a number of concerns in emails and in discussions with Ms Hamilton about the nature of the interview with Mr Doolan on 7 November and the lack of detail in the allegations in the show cause letter. She requested a further week to respond, which was granted. Ms McFadden was ill and unable to attend the meeting on 13 November. It was postponed. A further letter was sent on 20 November 2025 providing further details of the allegations about the 14 October events. There were two
[2026] FWC 2772
8
allegations concerning that incident. Another allegation about an unrelated event was added. The third allegation was later to be found to be unsubstantiated and is not relevant. Ms McFadden was given until 25 November 2025 to respond. A meeting was scheduled for that day.
[31]
The two allegations concerning the transcase incident were:
Allegation 1:
• Why the agreed incident resolution decision between yourself and Q&FS was not executed i.e. to keep half of the product and dispose of the rest? and
Allegation 2:
• Why transparency was not provided to Q&FS on the changed outcome so that remedial action could take place to ensure that Quality, Food Safety, Consumer Safety and Legal Compliance is met and to protect our consumers, brands and our business?
Failure to execute the agreed incident resolution indicates alleged conduct and behaviour which is in direct contravention to Mars QMS and Food Safety regulations/procedures and Quality and Responsibility Principles, indicating,
–
You have made decisions and given other staff directives outside your designated authority,
–
You have failed to follow clear and reasonable instructions from the Q&FS team,
–
You have wilfully or/and recklessly engaged in conduct which has led to the release of contaminated product,
–
You have failed to comply with company policies, procedures, rules and regulations, and
–
You wilfully or/and recklessly withheld relevant information from the Q&FS team.
[32]
Present at the meeting on 25 November 2025 was Ms McFadden, her support person, Mr Doolan and Ms Hamilton. Ms Hamilton’s account of the meeting is that when asked about the events of 15 October Ms McFadden said she did not give specific instructions on the amount of product to be discarded but relied on the operators to implement the position agreed on 14 October. She did not oversee the operators work and trusted them to do the sorting. Ms Hamilton’s account of the meeting is that she and Mr Doolan pressed Ms McFadden to take some responsibility for the operators not implementing the agreed position. Ms Hamilton described her responses as deflective. Ms McFadden responded to questions about why she had not picked up the error in the emails sent later that day by saying she had not read them. She also noted that the salvaged product had been released by the operators without authorisation. Ms McFadden was then permitted to read from a written document in response to the allegations. The document was provided later that day.
[33]
The written response was 17 pages long. Ms McFadden’s response to the show cause letter provides a detailed account and justification for her actions during the food safety incident. The response addressed the incident involving the punctured transcase and outlined the steps Ms McFadden took upon being notified. She stated that her primary concern was to ensure product safety and compliance with Mars protocols. It explained that she immediately
[2026] FWC 2772
9
assessed the situation and consulted Ms Yadav, to determine the appropriate course of action. It records that she followed she then acted in accordance with her understanding of the non-conformance procedures. The response gives the reason for not immediately quarantining or disposing of the product, stating that Ms McFadden believed the risk of contamination was minimal based on her assessment and the advice received.
[34]
In addressing the specific allegations, the response disputed claims that Ms McFadden failed to follow procedure or acted negligently. She provided a timeline of her actions, set out her communications with staff and management, and highlighted ambiguities and inconsistencies in the company’s policies and protocols that contributed to the confusion. The response referred to the company’s training documents, and policies and procedures dealing with food safety and non-conforming product. It provided extracts from those policies. It set out various failures in compliance. Those failures went to the steps taken in dealing with the product by the operators, the release of the product by others, and inaccuracies in the computer records. It referred to different approaches among staff about the correct process, suggesting that the procedures were not always clear or consistently applied. Ms McFadden said her intent was to always comply with company standards but noted procedural ambiguities and the need for clearer guidance in similar situations.
[35]
Ms McFadden also emphasised her commitment to food safety and her track record as a responsible Team Leader. She expressed regret for any misunderstanding or unintended consequences resulting from her actions but maintained that she acted in good faith and with the best interests of the company and its customers in mind. She requested that management consider her explanation, the context of the incident, and her overall performance before making any final decision regarding disciplinary action.
[36]
Following the meeting Ms Hamilton prepared an investigation report The main focus of the report is the improper handling and disposal of the damaged mint product. Ms Hamilton reviewed documentation and records to assess whether there was compliance with procedures. Key findings of the report were that damaged mint product was not disposed of according to company procedures. There were lapses in following established quality and safety protocols. Ms McFadden was found to have deviated from required disposal processes. Ms Hamilton identified gaps in communication and training regarding proper disposal methods. She recommended that there be greater reinforcement of disposal procedures through additional training and improved communication of quality and safety expectations to all staff.
[37]
In relation to the allegations against Ms McFadden the report found the two allegations about the mint incident were substantiated. On the first allegation Ms Hamilton found that Ms McFadden did not ensure the agreed decision to keep half the product and dispose of the rest was implemented. She considered that Ms McFadden did not provide clear direction or oversight, and the report notes she did not show remorse or accountability for the outcome. On the second allegation that Ms McFadden failed to inform Q&FS of the changed outcome, preventing remedial action to ensure quality, safety, and compliance. Ms Hamilton found that Ms McFadden received communications indicating discrepancies in the quantities handled but did not investigate or escalate the issue. Ms Hamilton described these failings as giving rise to serious breaches in procedure, lack of accountability, and leadership concerns. The recommendations were to move to a show cause process. The report concludes with the following:
[2026] FWC 2772
10
Lindy has shown no remorse, responsibility, accountability or insight into the ramifications of not following the agreed position with Q&FS. This lack of reflection significantly impacts future trust and confidence in her leadership to be able to uphold Mars Principles and oversee the implement and application of Mars policies, procedures and guidelines.
Offer a “Without Prejudice” mutual separation agreement as a path forward
[38]
On 27 November Ms Hamilton requested that Ms McFaden attend a meeting to discuss an “outcomes meeting” the following day. She was told she could bring a support person.
[39]
On 28 November 2025 Ms McFadden and her support person met with Ms Hamilton and Mr Doolan. Ms Hamilton told Ms McFadden the outcome of the investigation and that the two allegations about the October incident had been substantiated and the third allegation about a separate incident had not. Ms McFadden was issued with a Show Cause letter and informed of a follow-up meeting on 2 December to respond as to why her employment should not be terminated. She was put on paid leave to prepare her response. According to Ms Hamilton’s notes of the meeting Ms McFadden was told:
Your actions are in conflict with,
QMS process and standards
the Mars Five Principles – specifically the Quality and Responsibility principle,
Mars Critical Expectations
Mars Conduct & performance Policy
Mars Ethics & Compliance Guide
Your Contract of employment
and the Associate Concept
[40]
Ms McFadden was also told that her conduct gave rise to questions of trust and confidence in her as a Leader and that Mars had formed the view that it may be appropriate to terminate her employment. Ms McFadden was handed a show cause letter and was told that the final decision would not be made by anyone in the room. A meeting was set for 2 December 2025. Ms Hamilton’s notes go on to state:
I continued by stating,
I understand that this process has and is taking its toll on you and therefore I would like to make a Without Prejudice Offer. Do you understand what I mean when I say Without Prejudice?
Without Prejudice allows discussions to take place which are confidential and cannot be used as evidence in court. It’s a protection to allow both parties to talk freely and work towards reaching an agreed settlement.
Is it something you would like to discuss as a means to of bringing this disciplinary process to a mutual end?
Lindy clearly articulated she did not want to discuss a without prejudice offer at this stage and the meeting ended.
[41]
Ms McFadden requested that the 2 December meeting be put back to allow her to get advice. The request was granted the meeting happened on 9 December 2025. Ms McFadden attended with her support person. Mr Doolan and Ms Hamilton were also there. The factory
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manager Mr Firth was there too as he was to make the ultimate decision whether to dismiss Ms McFadden.
[42]
Ms McFadden was told this was her last chance to respond to the substantiated allegations from the investigation into the mishandling of contaminated mints. Ms Hamilton’s notes show that she emphasised the seriousness of the breaches and the expectation of accountability and leadership and asked Ms McFadden to explain why she should not be dismissed.
[43]
Ms McFadden read from a statement and restated her position, that she was unaware of the specific actions taken by the operators and that she had trusted her experienced team to follow procedures. She argued that as Team Leader, she was not directly responsible for the actions of others once tasks were delegated, and that she had verbally escalated issues when made aware of them. Ms McFadden acknowledged missing some communications due to workload and pressure but denied intentionally breaching procedures. She maintained that she did not instruct operators to deviate from agreed protocols and challenged the evidence and process, raising concerns about procedural fairness.
[44]
Mr Firth said that his decision would consider both process and leadership accountability, not just technical compliance. He expressed concerns about Lindy’s lack of ownership, failure to escalate issues, and her overall approach to food safety and risk management. He said he would review all material and Ms McFadden’s responses before making a final decision, which would be communicated the following day. Ms Hamilton’s notes state that:
Dan Firth stated that his future decision was to be based three (3) things:
1. There was an agreed position on what had to occur with contaminated mints, that is not in dispute, 1 want to understand what direction did you OR didn’t you give on what had to occur with the mints?
2. When aware of the deviation what did you do?
3. Ownership and accountability as a leader to follow food safety standards and the verbal agreement made with Q&FS.
[45]
A further meeting was held the following day with the same attendees. Ms McFadden was allowed to read from a prepared note and was then advised of the decision to dismiss her. Ms Hamilton’s notes record that Mr Firth said:
He had reviewed Lindy’s statement and material along with that from the investigation process.
He reiterated that his focus had been on the three (3) points he raised yesterday
He then proceeded to outline his conclusion,
On the balance of probabilities he found that:
– Lindy did fail to execute the agreed position.
– The event was not handled in a way which would uphold our food safety expectations nor of what was expected from a Team Leader in managing such an event putting the site and company at risk.
– What he heard around ownership and responsibility from Lindy as a leader within the plant was concerning — an overwhelming lack of ownership and deflection to others.
– Lindy’s view and perspective around food safety was also concerning to him.
[2026] FWC 2772
12
– Due to these concerns he lacked faith and confidence in Lindy’s ability as a leader and in her ability to manage future food safety incidents effectively/appropriately.
His decision was to terminate Lindy’s employment with immediate effect and provided a formal letter outlining this.
[46]
Ms McFadden was again offered the opportunity to resign under a mutual separation agreement but said she would pursue legal action for unfair dismissal instead.
[47]
The termination letter reflected the discussions. It characterised Ms McFadden’s actions as misconduct. Stated that her failure to implement the agreed position with Ms Yadav from 14 October 2025 was serious breach of Mars’ quality and food safety standards and a failure as a leader. It referred to Ms McFadden’s failure to show remorse for her lack of action or reflection on how the incident was managed and how it should have been managed differently. It referred to a failure to see the wider implications for Mars for quality, food safety, consumer safety, the company’s brand and legal; compliance by not ensuring the agreed position was implemented. That the qualities displayed were not qualities of a leader and as a result Mars had lost trust and confidence in her as a leader. Ms McFadden was dismissed effective 10 December 2025 and was paid 6 weeks’ pay in lieu of notice.
Consideration
[48]
Ms McFadden seeks an unfair dismissal remedy. She seeks reinstatement, an order she be paid lost wages and an order her service be recognised despite the dismissal. Mars accepts that Ms McFadden was a person protected from unfair dismissal for the purposes of s. 382. Unfair dismissal is defined in s. 385. The only issue arising under s. 385 is whether the Commission can be satisfied that the dismissal harsh, unjust or unreasonable and consequently was unfair.
[49]
In determining whether a dismissal is harsh, unjust or unreasonable the Commission is required to take into account the matters listed in s. 387. Section 387 reads:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
[2026] FWC 2772
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(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
S387(a) valid reason
[50]
It is well established in cases in this Commission1 that:
a.
A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
b.
Where the dismissal is related to conduct, a reason would be valid because the conduct occurred and it justified dismissal.
c.
The nature of the conduct is to be assessed on the evidence before the Commission and not what the employer thought at the time of the dismissal.
d.
A termination of employment for conduct that does not justify dismissal because, for example, it involved a trivial misdemeanour, would not be for a valid reason.
e.
Similarly, conduct that did not occur or did not constitute the misconduct alleged, would not be for a valid reason.
[51]
The Full Bench in IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070, said the assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself.2
[52]
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.3
[53]
Ms McFadden was dismissed for misconduct. The termination letter identifies her failure to implement the agreed position with Ms Yadav on 14 October 2025 as the relevant conduct. It characterised that conduct as misconduct because it was said to be a serious breach of Mars’ quality and food safety standards and a failure as a leader. The letter also referred to Ms McFadden’s failure to show remorse for her lack of action or reflection on how the incident was managed and how it should have been managed differently including a failure to see the wider implications for Mars for quality, food safety, consumer safety, the company’s brand and legal compliance.
1 Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26] and the cases discussed therein.
2 at [14]
3 Sydney Trains v Trevor Cahill [2021] FWCFB 1137, [38], applying King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[2026] FWC 2772
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[54]
The first question is whether what the conduct was. I have set out the events earlier in these reasons. There was an agreed position with Ms Yadav on 14 October 2025 that half of the 485kg of mints should be discarded. That agreed position was reached in the presence of Mr Johnson and Mr Matthews. The agreed position was not followed by Mr Matthews and Mr Zhao who, on 15 October 2025, discarded only 80 kg of the product. Ms McFadden did not give a direction to the operators on 15 October 2025. She did not at any time give an instruction to depart from the agreed position. The task of separating the mints took around 10 minutes. Ms McFadden was not present when it occurred. Ms McFadden was not aware that product had been discarded until later that day when Mr Matthews told her a little more than half had been kept. Consequently, Ms McFadden believed the sorting had agreed in accordance with the agreed position.
[55]
Mars also relied on Ms McFadden having access to the template annexed to Mr Hawkins email of 7:35 am which indicated the agreed position was departed from. It contends that by failing to read the email Ms McFadden did not ensure that the agreed position was followed. It is the case that Ms McFadden failed to read the email. I do not consider this to be misconduct justifying dismissal.
[56]
Mars believed the failure to ensure the agreed position was followed amounted to misconduct justifying dismissal because the failure was a serious breach of Mars’ quality and food safety standards and a failure as a leader. As I have found that Ms McFadden believed the agreed position had been followed, to her mind there was no need to take further steps to ensure that it had.
[57]
As to the allegation that the failure to do so led to a serious breach of the quality food standards, I was taken by the respondent to a document entitled “Q&FS – ASQ Non-Conformance and Product-Related Incident Management Process (PRIMP)”. It set out the procedure to be followed by employees when a non-conformance event such as the incident on 14 October 2025 occurs. The steps to be taken in response to nonconformance and the employees responsible for each of those steps are described in a flow chart included in the document. I have annexed that chart to this decision and marked it Appendix A.
[58]
Those steps required:
a.
The operator to stop and notify the Team Leader.
b.
If product is affected, the team leader along with the manual handler is to isolate and quarantine the affected product within 4 hours of the incident.
c.
Team Leader and Material Handler are to create a non-conformance template and email it to the Asquith-on hold email address also within 4 hours of the incident. labels are required to be attached to the product.
d.
Quality and food services are required to raise a non-conformance in Nexus within 24 hours and follow the PRIMP process if required.
e.
Material Handling is to verify the hold in the Nexus system and confirm the accuracy of stock held physically and in SAP.
[2026] FWC 2772
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f.
The Team Leader is then to complete the sampling and investigation in Nexus including what happened, sample details, result of sampling and to recommend disposition.
g.
Quality and Food Services are to then verify and update dis[position for held material in Nexus.
h.
Quality and Food Services Manager is to review incident and approve recommended disposition in Nexus.
i.
Manual Handler or Inventory Coordinator is then to execute the approved disposition both physically and in SAP.
[59]
I have set out the evidence of what happened concerning the 14 October incident earlier in these reasons. What happened on the factory floor, what happened to implement the agreed position, and what was recorded as having happened in SAP and Nexus are all different. And, as can be seen, many of the steps in the procedure were not followed at all.
[60]
The first two steps appear to have been followed. Mr Johnson reported the incident to Ms McFadden, and the product was taken out of the line. The third step of creating the email template did not occur within 4 hours. Mr Kennedy created the template at 12:35 am on 15 October 2025. Nothing turns on the delay. Mr Kennedy’s template had all 485 kg quarantined. This reflected the position at the end of the shift on 14 October 2025. The next step was for quality and food services to record a non-conformance event in Nexus within 24 hours of the incident. This was done by Ms Yadav at 3:33pm on 15 October 2025. That document recorded that 485 kg was on hold. Ms Yadav was aware by that time that the operators had taken action to separate the product. She had a discussion with Ms McFadden about it. Ms McFadden told her the sorting had occurred and over half had been kept. Ms Yadav however created the Nexus record using the figure in Mr Kennedy’s template email. The email that was generated and circulated said the 485kg had been labelled as quarantined, but it had not. Only the original transcase, which had 80kg remaining, had been labelled. The new transcase had not and was in circulation. The email also said that the 485 kg had been blocked in SAP, but only 80 kg remained in the transcase that was blocked. The SAP records were changed throughout the day. The email classified all of the product as being on “Hold/verify hold effectiveness” phase. A due date of 16 October was recorded. By the end of 15 October Mr Mears had entered that 80 kg remained in block.
[61]
On 16 October SAP records that 405 kg had been released. There were relevant communications on 17 October 2025 when Ms McFadden, seemingly unaware that 405kg of the product had been released, asked Ms Yadav that Mr Mears be added to the non-con for release. Ms Yadav replied that the non-con had been moved to Mr Barnsley for release.
[62]
The fifth step in the procedure required material handling to verify the hold in the Nexus system. The Nexus records show that Mr Mears did this on 22 October 2025. He did not record that 405kg had already been released.
[63]
The sixth step is for the team leader to complete the sampling and investigation in Nexus including by recording what happened, sample details, result of sampling, and to recommend disposition. This could not have been done because the product had already been sorted and dealt with. Ms McFadden notes that Mr Mear’s record in Nexus on 22 October 2024 left the
[2026] FWC 2772
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Team Leader assigned to this task blank. The records indicate that Ms McFadden and Ms Yadav was responsible for this step. The records suggest that the task of investigation, sampling and making a recommendation was due to be done by 31 October and was completed on 24 October. It appears the step had already been done, out of sequence, on 14 October when the agreed position was reached between Ms Yadav and Ms McFadden about what was to be kept. Ms McFadden states she had no further involvement with the incident after her email on 17 October and so she was not involved on 24 October. It is also the case that. The product had been sorted and 80kg destroyed on 15 October and the remaining product released on 16 October some 8 days before the Nexus system records a decision being made.
[64]
The seventh step was for quality and food services to verify and update the disposition in Nexus. This also occurred on 24 October 2025 with Ms Yadav recording a recommended disposition of the 485kg of the product to be destroyed in Nexus. Mr Barnsley also approved the disposition recommendation in accordance with the ninth step. These records do not accord with what happened. On 28 October 2025 Mr Mears completes the final step by verifying on the system the execution of the approved disposition both physically and in SAP.
[65]
The process recorded in the Nexus system proceeded on a wrong assumption. That process indicates that the entire transcase was quarantined on 14 October 2025 and was dealt with in accordance with the procedure in the weeks that followed. The records indicate that the ultimate decision was to destroy all 485 kg. It departed from the original agreed position on 14 October 2025, that only half needed to be destroyed. It proceeded as if Mr Matthews and Mr Zhao had not already retrieved and repackaged 400 kg of the mints and only destroyed 80 kg on 15 October 2025. It is evident that all 485 kg should have been on hold from 14 October 2025 until the process was complete.
[66]
There was a clear disconnect between what was happening on the factory floor and the events recorded in the computer systems. A number of people were involved. It appears that Mr Matthews and Mr Zhao should not have sorted the product on 15 October. To meet the requirements in the procedure, all of the product should have been on hold pending the required steps being followed. The actions taken by the operators in the morning of 15 October of discarding some of the product should have been the last step of those steps. They physically executed the disposition of the contaminated product prematurely. Mr Hawkins, when he found out the mints had been sorted and 80kg disposed of so quickly and recorded it in the attachment to his email of 7:25 am, should have been aware that the non-conformance procedure had not been followed. That email was addressed to Mr Mears and Mr Kennedy. They should have read the attachment and noted the discrepancy. Mr Mears released 405 kg of the product in the SAP on 16 October 2025. This was in line with what had happened in the factory, and in line with the information in the attachment to Mr Hawkins’ email, but it was not in accordance with the procedure. It should not have happened. The Nexus entries as to what happened after that date all depart from what had actually occurred.
[67]
Even if Ms McFadden was aware of the discrepancy between what was done by the operators and the agreed position, given the wholesale departure from the procedure, I disagree with Mars assessment that her failure to ensure the agreed position was followed was a serious breach of the safety procedure justifying her dismissal. It may have been a breach, although it is not clear of which step given the circumstances, but given the wholesale departure from the
[2026] FWC 2772
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procedure it cannot be considered a serious breach. Further, given that others were also involved it did not justify her dismissal.
[68]
Mr Firth made the decision to dismiss. He was asked about whether the process was followed. He acknowledged that the non-conformance procedure required specific steps, including documentation and approvals, particularly for the disposition destruction or release of affected product. He accepted that it was not followed. Mr Firth explained that, in practice, the team prioritised managing the risk and making timely decisions over strictly adhering to every system and documentation step. He stated that while some steps may have been missed or not documented in the usual way, he was confident that the actions taken were appropriate for managing the risk and ensuring consumer safety. That may be his view. His decision however was to dismiss Ms McFadden because she had not followed the procedure. He did so in the context that others had not followed the same procedure.
[69]
I note that the respondent does not appear, at any stage prior to the dismissal, to have attempted to reconcile the events of 14 and 15 October 2025 with its procedure. It took the path of investigating Ms McFadden’s actions instead. Ms McFadden attempted to reconcile what happened with the procedure in her detailed written response on 25 November 2025. Her account accords with the evidence in the proceedings. Ms Hamilton’s investigation report, prepared with the benefit of Ms McFadden’s response makes no reference to that analysis. Ms Hamilton took the view that Ms McFadden was blaming others and failing to take responsibility for her actions. I do not read Ms McFadden’s response that way. Ms McFadden was raising serious breaches of procedure by a number of people over the 14 October non-conformance incident. Her response should have prompted a full investigation into the way the product was handled. It did not. Instead, it was regarded as a failure to take responsibility and to involve blaming others. This was an inaccurate and unfair characterisation of her response. Put simply, a number of mistakes were made by a number of people. Mars’ focus however was on the conduct of Ms McFadden.
[70]
Mars submitted that the ramifications of Ms McFadden’s conduct were significant and obvious and could have resulted in a large amount of possibly contaminated product being circulated. For the reasons above I do not accept this submission. Given her role and the multiple failings by a number of employees Ms McFadden cannot be held accountable for the consequences of the way the incident was dealt with.
[71]
I also consider that Mars’ characterisation of Ms McFadden’s conduct as a serious breach of Mars’ quality and food safety standards and a failure as a leader to be misguided. The food standards embodied in the non-conformance procedure were breached, but Ms McFadden was not responsible for those breaches. The termination letter’s references to Ms McFadden failing to show remorse for her lack of action, failing to reflect on how the incident was managed, and how it should have been managed differently is not made out. The evidence suggests that Ms McFadden was the only one to turn their mind to how the procedure should have been followed and what should have happened. She did so in a methodical way in her response to the allegations. There was no cause for remorse on her part in view of that material.
[72]
I find that the conduct described in the two allegations for which Ms McFadden was dismissed, failing to implement the agreed position with Ms Yadav on 14 October 2025, and
[2026] FWC 2772
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failing to be transparent when it became evident the position was not followed, are not made out and do not amount to misconduct justifying dismissal.
[73]
Consequently, I find that there was no valid reason for the dismissal.
Sections 387 (b), (c) and (d) notification for the reason, opportunity to respond and support person
[74]
Sections 387 (b), (c) and (d) go to the process followed in effecting the dismissal.
[75]
The Full Bench in Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 said in relation to ss 387(b) and (c):
[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. They may be summarised as follows:
(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.
(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) – prior to the decision to dismiss being made.
(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.
(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant’s dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal.
[76]
Section 387(d) goes to whether the employer unreasonably refuse to allow the person to have a support person present to assist at any discussions relating to dismissal.
[77]
Ms McFadden was provided the reason for dismissal prior to the dismissal, and she was given an opportunity to respond. She was also permitted to and did have a support person present during the discussions about her dismissal.
[78]
I consider that the investigation process was flawed. The investigation into the incident focussed simply on Ms McFadden’s role. It should have been clear after the first meeting and Ms McFadden’s written response to the allegations that there were a number of breaches of the company’s food safety procedure. These matters were not investigated. Mr Doolan and Ms Hamilton were fixed on Ms McFadden and considered that by pointing out that others were at fault was a failure on her part to take responsibility as a leader. This fixation misdirected the
[2026] FWC 2772
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investigation and led to what I consider to be prejudgment on their part. The offers to permit Ms McFadden to resign before the investigation was complete strongly suggest this. Ms Hamilton’s investigation report recommended that Ms McFadden be allowed to resign. The report was prepared before Ms McFadden had the chance to respond to the factual findings made. Ms McFadden was also asked to resign prior to the final decision being made.
[79]
Consequently, while Ms McFadden was notified and given an opportunity to respond, I do not propose to give these matters much weight in the ultimate assessment of whether the dismissal was harsh, unjust, or unreasonable.
Section 387(e) unsatisfactory performance warnings
[80]
As the dismissal did not relate to unsatisfactory performance, this consideration does not arise and does not weigh in support of or against a finding that the dismissal was harsh, unjust, or unreasonable.
Sections 387(f) and (g) size of the employer’s enterprise, and dedicated human resource management specialists or expertise
[81]
Mars is a medium size employer and had access to a dedicated human resources management specialist in Ms Hamilton. These factors are neutral.
Section 387 (h) Other relevant matters
[82]
Section 387(h) requires the Commission to take into account any other matters that it considers relevant.
[83]
Ms McFadden submits that other relevant factors include, her length of service, her unblemished employment record, that the dismissal was disproportionate to the alleged misconduct, and that dismissal has had severe personal and financial consequences for her and her family.
[84]
Ms McFadden was employed at Mars and its predecessor for 23 years with no prior disciplinary issues or poor performance. I agree that this is relevant and it weighs in favour of a finding that the dismissal was harsh.
[85]
The termination stemmed from one specific incident, described as a ‘hold and release failure.’ Ms McFadden contends that even if her actions on 14 and 15 October 2025 or her failure are made out, these do not justify dismissal, especially since the product in question was never released to the public. I have dealt with this above and consider it to be weigh heavily in favour of a finding that the dismissal was unfair. There is no need to deal with here.
[86]
Ms McFadden also submits that there have been at least three similar ‘hold and release failures’ at Mars since 2019, but those involved were not dismissed. This is said to amount to unfair, differential treatment making the dismissal unfair. There is insufficient evidence about the circumstances of the earlier matters, and I do not give them any weight. They are therefore not relevant.
[2026] FWC 2772
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[87]
Ms McFadden moved homes twice to remain close to her workplace and has structured her family life around her job. She lives with her partner and two sons, one of whom has special needs. Her work schedule allowed her to care for her children, as their schools are nearby and her shifts provided flexibility. Her partner cannot assist with school runs due to his own work commitments. If not reinstated, Ms McFadden says she faces two difficult options: seeking similar work far from home requiring a move and school changes for her children or selling her home to pay down her mortgage and seeking lower-paid, flexible work locally. The financial impact of the dismissal is compounded by the loss of a defined benefits retirement scheme, resulting in a projected loss of over $300,000 at retirement.
[88]
I consider that these factors do contribute to a finding that the dismissal was unfair as it was a harsh step to take in her circumstances. They also arise due to the length of service and Ms McFadden’s expectation that as her work performance was good over a long period she could expect ongoing employment. They weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.
Harsh, unjust, and unreasonable
[89]
Findings have been made, as set out above, in relation to each matter specified in section 387 of the Fair Work Act. The Commission must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.4
[90]
I am satisfied that the dismissal was unfair under s. 385 of the Act.
[91]
Having considered each of the matters specified in section 387 of the Fair Work Act, and for the reasons set out above, I am satisfied that the dismissal was harsh, unjust and unreasonable. It was unreasonable because there was no valid reason as Ms McFadden’s conduct did not justify dismissal. It was unjust because Ms McFadden was targeted for breaches of a workplace procedure in circumstances where there was substantial non-compliance with the procedure by others and those breaches were not investigated. There was also an element of prejudgment in investigation. It was harsh on Ms McFadden given her length of service unblemished record and its impact on her personal circumstances. Each of these factors separately lead to a satisfaction that the dismissal was unfair. Taken together I am well satisfied that the dismissal was unfair.
Remedy
[92]
Ms McFadden seeks orders for reinstatement, continuity of service, and lost pay. Ms McFadden states her dismissal was unfair, that she had an unblemished record, and that her personal and family circumstances made reinstatement the most appropriate remedy. She maintained she could work productively with her colleagues and that any issues were due to process failures, not her conduct.
[93]
A number of witnesses commented on reinstatement. Ms Yadav said that she could not trust Ms McFadden to follow the food safety procedures. Mr Matthews gave an opinion on the importance of food safety and said he would not feel comfortable if Ms McFadden returned to
4 Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[2026] FWC 2772
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her role. Mr Johnson gave his opinion that Ms McFadden would not provide the requisite level of leadership if she returned to her role and that reinstatement would be unworkable. Ms Hamilton opposed reinstatement, citing Ms McFadden’s lack of insight into her failings, unwillingness to accept responsibility, and the resulting breakdown in trust and confidence. She believed reinstatement would place significant strain on an already fractured employment relationship and doubted Ms McFadden’s ability to meet the standards expected of a Team Leader. Mr Firth stated that reinstatement would be neither appropriate nor practicable. He cited a fundamental loss of trust and confidence in Ms McFadden’s ability to manage food safety incidents, exercise sound judgment, and accept leadership accountability. He was concerned by her lack of insight, failure to accept responsibility, and tendency to attribute blame to others. Mr Firth noted that the Team Leader role is critical for food safety and requires the confidence of the organisation, which he believed was irreparably compromised.
[94]
The Full Bench of the Commission in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 said:
[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.
[95]
The Full Bench also summarised previous cases on the issue of loss in trust and confidence:
[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
•
Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
•
Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
•
An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
•
The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or
[2026] FWC 2772
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misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
•
The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[96]
Mars submits that reinstatement is not appropriate because it has lost trust and confidence in Ms McFadden as a result of her conduct, in particular her breaches of policy associated with the 14 October incident, the senior nature of her position, and her failure to show remorse. These matters have been dealt with above and I reject them as reasons to depart from the primary remedy of reinstatement. My findings are that while Ms McFadden played a role in the events on 14 October and following, she was not responsible for what were multiple breaches of the food safety procedure. Her actions do not provide a sound basis to conclude the relationship of trust and confidence is irreparably damaged or destroyed.
[97]
As to the views expressed by Mars witnesses, Mr Matthews and Ms Yadav were involved in the breaches of the food safety procedure and their views on reinstatement must be considered in that context and be given little weight. I have found that Ms Hamilton’s disciplinary investigation was flawed as it was too narrow. Once she was provided with Ms McFadden’s detailed response on 25 November 2025, Ms Hamilton should have broadened her investigation to include a full assessment of whether the food safety procedures were followed by others. Instead she took the view in her report of 26 November that Ms McFadden was solely responsible and should be disciplined and at that early stage be given the opportunity to resign. Ms Hamilton’s views must be considered in that context and must also be given little weight. Mr Firth’s evidence is in a similar vein to Ms Hamilton’s evidence. I do not consider that the allegation that there has been a loss of trust and confidence is soundly and rationally based.
[98]
Similarly, I am not convinced that the assertions that it would be difficult or embarrassing for Mars to reinstate Ms McFadden when it believed she had been guilty of serious wrongdoing or misconduct amounts to a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ms McFadden worked for Mars for many years. She had an unblemished employment record in that time. There is no evidence of any concerns with her judgment or leadership prior to the incident arising from the 14 October accident. To use the language from earlier cases, this is not a circumstance in which a ripple on the surface of the employment relationship will destroy its viability. Here the employment relationship is capable of withstanding some friction and doubts.
[99]
I am satisfied that a sufficient level of trust and confidence can be restored to make the employment relationship between Ms McFadden and Mars viable and productive. I am not persuaded that reinstatement would be inappropriate in all the circumstances of this case.
[100]
Consequently, I will make orders for Mars to reinstate Ms McFadden along with orders for lost wages and continuity of service. In the first instance, the parties are directed to agree
[2026] FWC 2772
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on the quantum of the loss of wages. If no agreement can be reached the parties may approach my chambers and I will determine the matter. Orders will issue separately5.”
McFadden v Mars Australia Pty Ltd- [2026] FWC 2772 delivered 24 July 2026 per Slevin DP