Comparing apples with apples: Can employees argue that their dismissal was unfair because similar conduct did not result in dismissal for someone else?
Unfortunately, differential treatment is challenging to argue in practice and often does not render a dismissal unfair on its own.
In the recent decision of Weston v Coal & Allied Mining Services Pty Limited (2023) FWC 93, Deputy President Saunders referred to long-standing authority from the Full Bench to the following effect:
In my opinion, the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”
Further, he referred to a similar paragraph of Deputy President Kaufman in Daly v Bendigo Health Care Group stating:
I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance, I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case.
As a result, in serious misconduct issues, the argument for differential treatment must be treated with caution. The Commission will need to be satisfied that the conduct of the other employee is virtually identical to be taken into account. Further, while differential treatment has been held to be a relevant factor in many unfair dismissal cases, it is by no means a silver bullet.