CASE IN POINT: Follow the Evidence, Not the Individual

McFadden v Mars Australia Pty Ltd [2026] FWC 2772

Key takeaways

• An unfair dismissal will not be saved by a procedurally tidy process where an investigation remains focused on the wrong question and fails to broaden as the evidence develops.

  
  

• Where multiple people contributed to a process failure, focusing disciplinary proceedings on one participant while leaving the conduct of others unexamined can amount to targeting, and will materially undermine the defensibility of the outcome.

  
  

• A respondent who identifies credible and materially relevant failures by others may be providing important evidence, not “shifting blame”. Investigators must be able to distinguish between the two and pursue the evidence where it leads.

  
  

• Prejudgment leaves fingerprints: where adverse conclusions or proposed outcomes appear to have been settled before the respondent has had a meaningful opportunity to address them, or separation options are raised before the disciplinary process is complete, the circumstances may strongly suggest prejudgment.

The Case

In McFadden v Mars Australia Pty Ltd [2026] FWC 2772, the Fair Work Commission ordered the reinstatement of a team leader dismissed after 23 years of unblemished service, finding no valid reason for her dismissal and that the investigation was "flawed".

The trigger was a food safety incident. A forklift punctured a carton holding roughly 485kg of peppermint mints on a Mars production line. Ms McFadden, the supervisor on duty, and a food safety specialist agreed a sensible compromise: salvage half the product, discard half.

That agreed position then quietly unravelled. Overnight and into the next morning, operators salvaged around 400kg and discarded only 80kg. The company’s two systems, one for inventory, one for non-conformance reporting, recorded contradictory quantities. Product was released from quarantine and made available for distribution before being retrieved and discarded. Along the way, multiple people (operators, a leading hand, material handlers, and the food safety specialist herself) each took steps that departed from the company’s own non-conformance procedure.

Mars investigated one person. Ms McFadden was dismissed for failing to implement the agreed position and for failing to be transparent once it became clear the position had not been followed.

Commission Findings

The Commission found neither allegation made out. There was no valid reason for the dismissal, the investigation process was flawed, and there was “an element of prejudgment.” The dismissal was found to be harsh, unjust and unreasonable, and reinstatement was ordered with back pay and continuity of service.

Critically, the Commission found that Mars did not, at any stage before the dismissal, attempt to reconcile the relevant events with its own procedure. It took the path of investigating Ms McFadden’s actions instead.

The Mars final decision-maker candidly accepted at hearing that the non-conformance procedure had not been followed, but explained the team had prioritised managing risk over strict compliance. He then dismissed Ms McFadden for not following the very procedure he was content to see departed from. That inconsistency was fatal.

Key Learnings

Scope with enough information, and remain adaptable. Before settling the terms of reference of an investigation, undertake sufficient preliminary fact-finding to understand the incident, the applicable procedures/frameworks, the people involved and the key records or systems that may explain what occurred. An investigation may properly begin with concerns about one employee, but the scope should not assume individual responsibility before the relevant facts are understood. Nor should it remain confined to that person where the evidence later points to a broader breakdown. In this case, what occurred on the factory floor, what was recorded in the company’s systems and what the non-conformance procedure required were materially different. Mars did not reconcile those matters and, when Ms McFadden’s response identified failures involving others, did not broaden the investigation. Investigators should define a clear initial scope while retaining the ability to pursue material new lines of inquiry, seek an amended mandate where necessary and allow responsibility to fall where the evidence places it.

Distinguish a diagnosis from a deflection. Ms McFadden’s detailed response identified failures by operators, material handlers, quality personnel and the company’s record-keeping systems. Mars treated this as blame-shifting and a refusal to accept leadership accountability. The Commission found that characterisation inaccurate and unfair. Her response should have prompted a fuller investigation. Where a respondent identifies credible and materially relevant failures by others, those matters should be tested as evidence, not dismissed as a character flaw or lack of remorse.

Do not apply accountability selectively. The final Mars decision-maker accepted that several employees had not followed Mars' procedure, but dismissed Ms McFadden for failing to follow the same procedure. Where a process failure involves multiple people, holding one employee solely responsible while leaving the conduct of others unexamined creates a serious fairness and consistency problem. The Commission ultimately found the dismissal unjust because Ms McFadden was targeted for procedural breaches in circumstances where others had engaged in substantial non-compliance.

Maintain a clear separation between findings and disciplinary outcomes. An investigation report may properly make findings and identify broader procedural or organisational recommendations. However, the investigator should ordinarily avoid recommending disciplinary action. In this case, the investigation report not only substantiated the allegations but recommended a mutual separation pathway before Ms McFadden had been able to address its factual findings. Separation was then raised before the final disciplinary decision. That sequence contributed to the Commission’s finding of prejudgment. The safer approach is for the investigator to determine the facts and findings, and for a separate decision-maker, genuinely open to persuasion, to consider the respondent’s further submissions, mitigating circumstances, and any disciplinary outcome.

Author: Riskwise Managing Director Matt Truelove is a highly experienced investigator and workplace consultant with extensive experience leading complex investigations as a former Detective and Senior Investigator in the Australian Public Service.

At Riskwise Consulting, our consultants are highly skilled in conducting workplace investigations. If you’re facing a challenging situation, contact us today to discuss how our expertise can help investigate and resolve issues effectively.