An EY partner who earned over $1.35 million per year has had his termination of employment challenge thrown out by an ACT court. The partner had been charged with assault for pushing the manager of an upscale Sydney bar during an after work event. This was while he was on a “final” warning for allegedly telling a colleague he wanted to sleep with her.
In this article, we look at the events of this termination of employment case: Nicita v Ernst & Young [2025]. We also look at a recent Fair Work unfair dismissal case claim of a Queensland mine worker who won almost $3,000 despite being found to have unreasonably kept a colleague in a choke hold.
Sydney-based Leonard Nicita had become a senior partner of global professional services powerhouse EY in November 2021. He had previously served as a partner between July 2013 and December 2015. Mr. Nicita rejoined the firm as a senior partner in the Transaction Tax team, which sat within the International Tax and Transaction Services Group. At this time, he signed a “Joining Deed.” This bound him to the partnership agreement and its regulations
As a partner, Mr. Nicita was subject to strict codes of conduct, including policies around workplace behaviour. His remuneration for the 2023 financial year was set at $1.35 million, with a $50,000 bonus.
The events leading to the termination of employment began with a serious disciplinary matter. This stemmed from an incident at the Miami Vice-themed Christmas party of EY’s tax division. This was held in May 2022, having been deferred due to COVD-19. At the party, a colleague accused Mr. Nicita of telling her she was “beautiful” and that he wished to sleep with her. She alleged that upon learning she was married, Mr. Nicita said that “most of [his] affairs are with married women.”
In 2025, Mr. Nicita denied this accusation during his unlawful termination proceedings with the Supreme Court of the Australian Capital Territory. He admitted that he had complimented her fancy dress and suggested that they go out to dinner. But Mr. Nicita claimed that he had simply asked the colleague if she was happily married. She had replied that she was, to which he said that he had “probably been with more married women than other single women” since he had become single.
About two weeks after the party, Mr. Nicita was told about the complaint by EY’s HR head. He said he was “totally shocked” and shared his recollection of that night, believing his actions to be “innocuous.” EY’s country managing partner later told Mr. Nicita that he was “very disappointed.” He said that his behaviour was “completely unacceptable” not only from anybody, but especially a senior partner.
Mr. Nicita told the country manager that the behaviour would not happen again. The manager said that if it did, Mr. Nicita “won’t be here.” He was sent a letter stating that he had breached several EY workplace behaviour policies and the consequences for his actions. This included apologising to the complainant and receiving a first and final warning against further inappropriate behaviour, which could result in termination of employment. Mr. Nicita was also hit with a financial sanction of $52,000, equalling 4% of his annual salary. He was also required to attend training.
While Mr. Nicita later disputed some of his alleged comments during his unlawful termination proceedings, the Supreme Court noted that these were never communicated to the country manager at the time. Therefore the court said that it was reasonable for the country manager to proceed on the basis that Mr. Nicita had admitted to the conduct.
The event that led to Mr. Nicita’s termination of employment took place on 4 August 2023. This was when he got into an altercation at a swanky Sydney bar. Mr. Nicita, who was with EY staff and clients, was filmed on CCTV pushing the bar manager during an argument over a lost jacket. He had also bumped him with his chest. Mr. Nicita claimed the manager had said to him that “you guys in your expensive suits and sluts in short skirts think you own the place, but you don’t.” The manager called the police and Mr. Nicita was subsequently charged with common assault.
In a disciplinary meeting following this incident, Mr. Nicita repeatedly described the incident as “innocuous.” However, after viewing the CCTV footage, EY’s country manager deemed it unacceptable. He later concluded that the appropriate action was termination of employment for “Just Cause.”
In November 2023, Mr. Nicita pre-empted the EY’s decision to terminate his employment by sending an email to the country manager informing him of his retirement. However, this resignation was not accepted by EY. A few days later, the firm decided to terminate his employment for “Just Cause” with immediate effect. EY cited Mr. Nicita’s failure to disclose his criminal charge to the country manager and the Council of the Law Society. It also highlighted that his “inappropriate behavior” at the Sydney bar breached EY’s global code of conduct.
A couple of weeks later, Mr. Nicita exercised his right to appeal. His solicitor argued that there was no power to terminate after resignation and that the country manager had not acted in good faith. They also argued that the misconduct was insufficient to warrant termination of employment. This appeal was, however, rejected by EY.
Mr. Nicita took legal action against EY on the basis that it had breached its partnership agreement. He made two key arguments to the Supreme Court of the Australian Capital Territory. Firstly, Mr. Nicita contended that the country managing partner lacked power for the termination of employment. He argued that his misconduct occurred “in his private life” and therefore fell outside the scope of the partnership regulations. Mr. Nicita argued that the “sole opinion” required to form “Just Cause” must be reasonable.
Secondly, he argued that the country managing partner’s decision was unreasonable and lacked good faith, especially since he had given notice of his retirement. He said the decision was disproportionate as EY could have placed him on gardening leave until the end of his notice period.
EY argued to the Supreme Court of the Australian Capital Territory that the express terms of the partnership agreement provided the country managing partner with the power to terminate employment. It said that he was afforded “absolute discretion” to remove a partner if they were guilty of conduct which “equates to a just cause.”
The firm submitted that the opinion was reached in good faith, citing the partner’s pattern of behaviour and his failure to make full disclosure as required under the regulations. EY argued that the country managing partner was obligated to act in the best interests of the firm, overriding any general obligation to the individual partner.
The Supreme Court of the Australian Capital Territory delivered its decision in October 2025. It found that the “Just Cause” provisions of the partnership agreement were not limited to work performance. The court stated that the definition of “Just Cause” extended to private conduct. It found that it was reasonable for the country managing partner to conclude that Mr. Nicitia’s actions were “likely to harm significantly” the interests of the firm if he were to keep his position.
On the argument of reasonableness and good faith, the court found it “clearly reasonably open” for the manager to form the opinion of significant harm. It cited the partner’s prior warning and failure to disclose his criminal charge. The court said that Mr. Nicita “did not fully appreciate” his obligations under the partnership agreement.
The Supreme Court of the Australian Capital Territory determined that EY was entitled to conclude that its interests would be “advanced” by only having partners with higher standards of conduct. This conclusion was “reinforced” by the external pressures on EY to protect its brand. An independent review into EY’s workplace culture was due to be published shortly after Mr. Nicita’s incident. The firm was also facing a Parliamentary enquiry into allegations of misconduct by major accounting firms.
The court also rejected Mr. Nicita’s argument that his retirement notice or the option of gardening leave invalidated the termination of employment. The retirement notice did not “significantly alter the landscape,” and garden leave was not seen as a practical option as Mr. Nicita was seen as likely to cause significant harm. The court also noted that the rejection of Mr. Nicita’s appeal was “final and binding on the parties.”
Ultimately, the Supreme Court dismissed the proceedings and ordered Mr. Nicita to pay the EY’s legal costs.
Another recent example of an employee who was terminated due to a fight is the unfair dismissal QLD case Gregg Davis v Odell Resources Pty Ltd [2025]. Gregg Davis started working for mining services firm Odell Resources as an operator in March 2023. Aged in his sixties, he worked full-time on a fly-in fly-out basis at the Wiluna Mine in Leonora, Western Australia, while residing in Queensland.
The incident that led to Mr. Davis’ Fair Work unfair dismissal claim occurred on the morning of 18 September 2024. At the end of his night shift, he was involved in a physical altercation with another mine worker, Paul Tsoukalas. Another colleague, Bruce Bowden, was also present. The incident began after Mr. Davis approached Mr. Tsoukalas regarding the speed at which he had driven into the parking area. He told the Fair Work Commission that he thought Mr. Tsoukalas had driven “too fast and created too much dust.”
In his Fair Work unfair dismissal claim, Mr. Davis argued to the Fair Work Commission that he had acted in self-defence. He said that after he calmly raised the issue of dust, Mr. Tsoukalas became “aggressive” and “threatening,” calling him derogatory names. He claimed that he tried to deescalate the situation by counting slowly to three while raising his fingers and taking a step back.
Despite this, Mr. Davis claimed that Mr. Tsoukalas “attempted to strike me,” which led to Mr. Davis’s reaction. Mr. Davis agreed that Mr. Tsoukalas had not hit him but said he commenced what he believed was a “striking action.” He said he responded with an “instinctive” reaction that was not premeditated and was purely for self-preservation.
Mr. Bowden corroborated Mr. Davis’s account. He told the Commission that Mr. Davis approached in a “civil manner” and that Mr. Tsoukalas got “right up in Mr. Davis’s face” and said that he would “knock you out you old C.” Mr. Bowden also confirmed that Mr. Davis counted to three and stepped back. When Mr. Davis got to three, Mr. Tsoukalas “dropped his arm like he’s gonna uppercut him,” leading Mr. Davis to “lash out.”
Following the altercation, Mr. Davis worked his rostered night shift that night. But the next day, he was stood down without pay until 22 September 2024. On the following day, a public holiday, Odell Resources sent Mr. Davis a show cause letter requiring him to respond to the allegation that he had fought with a colleague. He was also required to fly to Perth before returning home to Queensland.
During his Fair Work unfair dismissal proceedings, Mr. Davis told the Fair Work Commission that he missed his initial flight to Perth. He claimed that he was forced to travel for 35 hours via other means at his own expense. Due to this, he asked Odell Resources for a time extension to respond to the allegations, which was denied. Mr. Davis was summarily dismissed for serious misconduct by email on 25 September 2024.
Mr. Tsoukalas told the Fair Work Commission a different story than Mr. Davis and Mr. Bowden. He said that Mr. Davis approached him in an aggressive manner “waving his arms and yelling.” He claimed that he told him to walk away three times, before Mr. Davis “punched me in the face” with a closed fist. Mr. Tsoukalas stated that the punch was unprovoked. He further claimed that while he was on the floor, Mr. Davis put him in a chokehold and began “dragging me away from my truck.” Mr. Tsoukalas described this movement as “terrifying.”
In its response to Mr. Davis’ Fair Work unfair dismissal claim, Odell Resources told the Commission that his immediate termination of employment was justified due to serious misconduct. It said that his employment contract explicitly stated that fighting was unacceptable conduct. The company also submitted that, in accordance with past Fair work cases, the Commission generally does not view a dismissal for fighting as harsh, unjust or unreasonable.
Mr. Davis’s Fair Work unfair dismissal claim was heard by the Fair Work Commission in April 2025. It first addressed the legal test regarding fighting. It explicitly rejected Odell’s submission that the Commission’s general tendency is to regard “all of the circumstances” in which the fight occurred. However, after assessing witness testimony and reviewing dash cam footage of the fight, the Commission accepted that there was a valid reason to dismiss Mr. Davis.
It accepted that Mr. Davis was acting in self-defence by throwing a punch and locking Mr. Tsoukalas in a choke hold. But the Commission deemed that Mr. Davis had held him in a choke hold for too long, saying it was “excessive.” It noted that Mr. Davis was in his sixties, decades older than Mr. Tsoukalas, who was far taller than him.
While a valid reason was found, the Fair Work Commission concluded that the dismissal process was flawed. It said that Mr. Davis was given a “very short” time to respond to the allegation. The Commission said it was unreasonable for Odell Resources to refuse a time extension. It ultimately ruled that these procedural deficiencies outweighed the fact that he got into a fight. The Commission also took into account Mr. Davis’ clean employment record.
Ruling that his termination of employment was unfair, the Commission found that reinstatement was not appropriate and instead ordered compensation. The compensation figure was reduced by 20% due to Mr. Davis’s hand in starting the fight. In the end, Odell Resources was forced to pay Mr. Davis $2,890.08,
Read more: Dismissed Worker Who Started Fight Claims ‘Self-Defence’
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