Differential treatment between employees can make a dismissal unfair

When an employee is dismissed, it’s natural to compare how others have been treated in similar situations. If other employees kept their jobs after engaging in similar conduct, it can feel unfair — and sometimes, it can even strengthen a legal claim for unfair dismissal.

However, while differential treatment (treating one employee more harshly than others) can be relevant, the Fair Work Commission approaches these claims with caution. Not every difference in outcome automatically means a dismissal was harsh, unjust, or unreasonable. There are important rules about how these comparisons must be made.

Understanding how differential treatment arguments work is crucial if you are thinking about challenging your termination.

The Commission can take differential treatment into account as part of its assessment of whether a dismissal was harsh, unjust or unreasonable under the Fair Work Act.

If an employee is dismissed for misconduct, but another employee who engaged in the same or similar misconduct was not dismissed, the dismissed employee can argue that their treatment was inconsistent and therefore unfair.

However, the Commission will only rely on differential treatment arguments if strict conditions are met:

• Comparable cases must be properly matched: You must be comparing like with like — or as the Commission puts it, “apples with apples.”

• Sufficient evidence must exist: You must provide enough reliable evidence to show what happened to the other employees.

• Caution is applied: The Commission does not automatically assume unfairness simply because outcomes differed.

Case Study: Differential Treatment Leading to a Finding of Unfair Dismissal

In Fagan v Department of Human Services, a corrections officer was dismissed for taking toilet paper to an inmate during a lockdown — an action that breached the employer’s security policy.

The employee claimed that another corrections officer had engaged in similar conduct but was not dismissed. The employer attempted to argue that the two situations were different. However, after examining the evidence, the Fair Work Commission found that the conduct of both employees was indeed comparable.

Because there was no meaningful distinction between the two cases, the Commission accepted that differential treatment had occurred. The dismissal was ruled harsh in the circumstances, and the Commission ordered that the dismissed employee be paid compensation.

Key Lesson:
When employees are treated differently for the same or highly similar conduct, and there is no proper justification for the different outcomes, the dismissal may be found to be unfair.

Reminders: What Is Needed to Prove Differential Treatment

While Fagan's case succeeded, not all claims of differential treatment do. The following cases serve as important reminders that to succeed, you must provide proper evidence and ensure true comparability:

• Darvell v Australia Post:
  The employee argued he was treated differently from others, but the Commission found there must be sufficient evidence of comparable cases. Without solid proof, differential treatment arguments will fail.

• Parry v Hans Continental Small Goods Pty Ltd:
  Although the employee claimed unfair treatment after swearing at a manager, the Commission distinguished between casual workplace swearing and deliberate, targeted abuse. Context matters when arguing comparability.

• Daly v Bendigo Health Care Group:
  A nurse alleged she was treated differently from other staff after a patient complaint. However, there was insufficient evidence to properly compare her situation to others. Speculation is not enough.

• Sexton v Pacific National:
  An employee tried to compare his dismissal to a co-worker’s after a rail incident. However, the employee had prior warnings, unlike his colleague. Differences in disciplinary history can justify different outcomes.

What "Apples with Apples" Means in Practice

It’s not enough to say, “Someone else did something wrong and wasn’t sacked.”

The Commission needs to be satisfied that:

• The conduct was of a similar nature and seriousness

• The employees had similar roles, seniority, and disciplinary records

• There were no significant differences in mitigating factors such as past warnings or behaviour after the incident

Minor differences in context, history, or responsibility levels can mean two situations are not properly comparable.

Why Evidence Matters

Claims of differential treatment must be backed by solid, reliable evidence.
You must be able to show:

• What the other employee did

• What action the employer took (or didn’t take)

• Why their case is genuinely comparable to yours

Good evidence might include:

• Disciplinary records

• Witness accounts

• Emails or reports showing the different outcomes

Without this kind of proof, the Commission is unlikely to accept that unfair differential treatment occurred.

Can Differential Treatment Alone Make a Dismissal Unfair?

Differential treatment can certainly strengthen an unfair dismissal claim. However, it’s rarely enough on its own.

The Commission will still look at:

• Whether the employee’s conduct gave a valid reason for dismissal

• Whether the dismissal process was procedurally fair

• Whether the dismissal was otherwise harsh in all the circumstances

If there is a legitimate reason for treating employees differently — for example, one had repeated warnings and the other did not — the dismissal may still be upheld.

Practical Tips for Employees Challenging a Dismissal

If you believe you were treated unfairly compared to others:

• Gather specific evidence: Don’t rely on hearsay — get solid proof.

• Make sure the comparison is fair: Check that the situations are truly similar.

• Explain why the difference matters: Be clear about why the inconsistency makes your dismissal harsh or unreasonable.