The dismissal of a high-ranking Ernst & Young partner has become a cautionary tale within the realm of human resources. This development follows allegations that the partner, Leonard Nicita, made inappropriate remarks to a female colleague during a festive gathering.
The decision by EY to terminate Nicita was recently upheld by the ACT Supreme Court, confirming that the firm acted within its rights. This ruling underscores the seriousness with which the company regards its code of conduct.
Nicita, whose annual salary stood at an impressive $1.3 million, had previously been issued a final warning after he reportedly made advances towards a married female colleague at a Miami Vice-themed holiday party in 2022. The court documents revealed his alleged comment: “You’ll be surprised – since being single, I’ve probably been with more married women than single ones.”
Nicita defended himself by claiming that he merely extended a dinner invitation. However, EY determined that his actions were in violation of their stringent behavioral guidelines, leading to his dismissal.
This decision came at a significant financial juncture for Nicita, who was on course to earn an extraordinary $2 million by 2026. The case serves as a potent reminder of the expectations placed upon professionals in the workplace, particularly in maintaining respectful and appropriate conduct.
The firm then axed him, just as he was on track to earn a breathtaking $2million in 2026.
The ruling serves as a timely warning as workplaces across the nation gear up for the festive season when booze can fuel incidents that have devastating consequences.
For companies, the message is clear – Christmas cheer can quickly spiral into an HR and legal nightmare.
Former Ernst & Young partner Leonard Nicita (pictured) lost his breach of contract case after being warned over inappropriate behaviour at a Miami Vice-themed office Christmas party
HR lawyers say in almost every case too much alcohol or taking illicit drugs is involved in incident at Christmas parties
HR Legal lawyer Dan Feldman said the holiday season is a busy time for employment lawyers.
‘During December we often receive calls from clients that start with “You wouldn’t believe what happened last night at our end-of-year function”,’ he said.
‘It never ceases to amaze me that we are still getting these calls in the years following #metoo.’
Mr Feldman said the most common cases involve sexual harassment, sometimes crossing the line into sexual assault, bullying and violence.
‘In almost every case, too much alcohol or taking illicit drugs is involved,’ he said.
‘In many cases there have been warning signs throughout the year, and the inclusion of alcohol or drugs into the mix has seen these bad behaviours exacerbated.’
In 2022, senior radiologist Kevin Daynes, 72, was sacked after allegations of bullying, sexual harassment, and victimisation, including performing a ‘pelvic thrust’ toward a female colleague at a Christmas party in Cairns.
Daynes, dressed as Christmas holly in a foam outfit, denied the incident and sought $5million in damages in the NSW Supreme Court.
Senior radiologist Kevin Daynes (pictured) was sacked after allegations he performed a ‘pelvic thrust’ toward a female colleague at a Christmas party in Cairns
He claimed he was demonstrating the Haka while discussing New Zealand.
The judge awarded him nearly $350,000, ruling the claims did not amount to serious misconduct.
Feldman warned employers still owe a duty of care at off-site, after-hours work-sponsored functions and that liability can extend to after-parties if managers continue to pay for drinks.
‘It is obvious that at any event where alcohol is served the risk of inappropriate and unlawful conduct increases,’ he said.
‘Employers are encouraged to make their expectations clear regarding appropriate conduct, and put appropriate safety protocols in place where there is the service of alcohol.’
So what is crossing the line in terms of behaviour at an office Christmas party?
Feldman said asking a colleague out is not necessarily harassment, but timing and context matter.
‘Ideally that should be done away from work, outside of work hours, and in an appropriate and respectful manner,’ he said.
Asking someone out at the work Christmas party, when they are under the influence of alcohol and have made some physical contact is likely to cross ‘the line’ says Feldman
‘Asking someone out at the work Christmas party, when they are under the influence of alcohol and have made – or attempted – some physical contact is likely to “cross the line” if the advance is not reciprocated.
‘It is especially problematic if there is a power imbalance in the workplace.
‘A lot of employees think that the rules don’t apply to end of year or Christmas parties.’
Websters Lawyers senior associate Daniel Gluche said legal obligations to monitor alcohol consumption usually fall on the licence holder.
But if an employer provides alcohol at the workplace, they assume the same duty of care.
‘An employer who fails to monitor the consumption of alcohol can again potentially be directly or vicariously liable for claims of sexual harassment or injury at the work function,’ he said.
Gluche cited cases where employers tested the limits of dismissal.
In one, Vision Australia was ordered to pay $1.5million in damages after mishandling an investigation into alleged misconduct during a 2015 business trip.
HR Legal lawyer Dan Feldman said asking a colleague out is not necessarily harassment, but timing and context matter
Vision Australia was ordered to pay Adam Elisha (pictured) won $1.5million in damages after a court ruled his employer mishandlled his sacking
The High Court ruled in 2024 the employee’s annoyed tone toward hotel staff in rural Victoria did not justify dismissal.
‘In this case the employee had to take his dismissal-related matter to the highest court in Australia for no more than talking in an annoyed manner because he was having trouble sleeping,’ he said.
‘The case is still widely cited as the test for whether out-of-hours conduct is a valid reason for dismissal.’
The Fair Work Commission has also heard numerous cases involving Christmas party misconduct.
In an infamous 2015 case, the Commission overturned Stephen Keenan’s dismissal after he drank heavily and made inappropriate comments, partly because the employer served unlimited free alcohol.
The Fair Work Commission found the Leighton Contractors team leader – who told a board member to ‘f*** off’ at his work Christmas party – was unfairly dismissed because his employer was partly at fault for serving unlimited free alcohol.
Lawyer Daniel Gluche (pictured) said the message was simple for employers, limiting alcohol is one major way to limit bad behaviour
After the function officially ended at 10pm, the party moved to the public upstairs bar, where Mr Keenan kissed another female employee on the lips and said: ‘I’m going to go home and dream about you tonight.’
Mr Gluche said in this case, the worker’s excellent work record, combined with the employer’s provision of free-flowing alcohol, saw Keenan’s dismissal overturned by the FWC.
However, in another case, an Aldi employee who threw a glass of beer at colleagues had their dismissal upheld.
The employee was sacked for misbehaviour at a work Christmas party, at which the employer also supplied free alcohol.
‘In this matter, the employee threw a full glass of beer towards other employees and the Commission found the dismissal to be fair,’ he said.
Mr Gluche said the message was simple for employers, limiting alcohol is one major way to limit bad behaviour.
