Same Mistake, Different Outcome: When Inconsistent Treatment Leads to Unfair Dismissal

If two employees engage in the same misconduct, should they face the same consequence? The Fair Work Commission says yes—unless there's a fair and justifiable reason to treat them differently. A key decision from the Commission highlights how inconsistent disciplinary responses can render a dismissal unfair, even when a workplace policy has technically been breached.

In Fagan v Department of Human Services, a corrections officer was dismissed for taking toilet paper to an inmate during a lockdown—a technical breach of prison protocol. However, the employee pointed to a significant inconsistency: a colleague who had done the same thing in similar circumstances was not dismissed.

The employer argued that there were differences between the two incidents, but the Commission wasn't persuaded. It found that the conduct of the two employees was comparable and that the differing outcomes were unjustified. On that basis, the dismissal was ruled harsh and unfair, and the employee was awarded compensation.

The case reinforces a powerful principle: equal treatment for equal conduct. If you're facing disciplinary action at work and know that others have been treated more leniently for the same behaviour, this could be a critical issue in your unfair dismissal case.

The takeaway? Employers can't pick and choose who to punish harshly when similar rules are broken. If they do, the Commission may find that they've crossed the line into unfairness.