An organisation has been ordered to pay more than $20,000 in compensation after the workplace watchdog ruled a dismissal would have been on legitimate, had it not differed from another employee who faced no disciplinary action for a nearly identical incident.
A youth correctional facility employee pursued an unfair dismissal claim with Fair Work Australia after he was dismissed for misconduct. The worker attended the room of an internee during the prescribed lockdown hours, against workplace policy, to provide toilet paper. However, the worker was assaulted and six youths escaped the facility (although all were soon recovered by officers).
The investigation by Fair Work found that the worker’s actions constituted misconduct, and would be grounds for dismissal. However, during the investigation, representatives for the employee cited an incident which had occurred just nine days before the assault, where another employee had also entered an internee’s room during lockdown hours and was also assaulted resulting in an unsuccessful escape attempt, yet this employee faced no disciplinary action.
While the employer argued that the two incidents were different because the latter had more adverse outcomes, Commissioner Anna Lee Cribb found that the two incidents were comparable, and because they represented differential treatment, rendered the dismissal unfair. “In this matter, even though the conduct of both [employees] was the same or similar, the outcome of their actions was not. However, there was no disciplinary action taken against [the other employee]. Even taking into account the different outcome of [the dismissed employee’s] conduct, it would seem difficult not to find that there was differential treatment,” Commissioner Cribb said. The Commissioner ordered that $20,419.10 in compensation be paid, as the employee did not seek reinstatement.
According to the Victorian Employers Chamber of Commerce and Industry (VECCI), this case emphasises the extent to Fair Work Australia will consider the context of each case in determining whether a dismissal is unfair. Employers must ensure that any disciplinary outcomes are considered in the overall context of the business and that a consistent overall approach to discipline is taken, supported by an appropriate policy on addressing any issues of concern in the workplace as they occur. Outcomes need not be equivalent; however, a perceived ‘free pass’ for one employee contrasted with dismissal for another on similar facts will be hard to justify in a tribunal context.
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