This is what the Fair Work Commission’s unfair dismissal benchbook says about the relevance of the differential treatment of employees to the merits of an unfair dismissal claim.
“Differential treatment compared to that given to other employees
“Differential treatment compared to treatment of other employees may be taken into account.384
The Commission will approach claims of differential treatment in other cases with caution as a basis
for supporting a finding that a termination was harsh, unjust or unreasonable.385
The Commission must be satisfied that any examples of differential treatment where no termination
occurred are properly comparable, comparing ‘apples with apples’.
386
There must be sufficient evidence to support the examples provided to ensure a proper comparison”