Woolworths Worker Loses Unfair Dismissal Claim After Fair Work Says He Was Never Fired

A Woolworths casual worker’s unfair dismissal claim has been rejected after the Fair Work Commission found the case was missing the most basic requirement: evidence that he had actually been dismissed.

The matter involved Victorian man Anthony Davitkov, who took Woolworths Group Limited to the Commission after an awkward and embarrassing exchange with a colleague during a casual shift. Davitkov said the incident upset him and left him unwilling to continue working, but the Commission found that hurt feelings did not amount to a legal dismissal.

The decision, published by the Fair Work Commission, was handed down by Deputy President Alan Colman on May 7, 2026. It dismissed Davitkov’s application against Woolworths and described the case as an “unmeritorious claim”.

According to the ruling, the workplace incident happened while Davitkov was working a casual shift at Woolworths. A co-worker allegedly told him that the cleft of his bottom was visible above his trousers and, in rude language, suggested that he cover himself up.

Davitkov was offended by the comment. The Commission accepted that he was upset, but it did not accept that the exchange meant Woolworths had ended his employment. That difference became the key point in the case.

After the incident, Davitkov lodged an application alleging that he had been dismissed in breach of his workplace rights. Woolworths, however, told the Commission that he had not been sacked. The company said he continued to work shifts even after lodging the claim, before later stopping his attendance.

Deputy President Colman accepted Woolworths’ position and found there was no dismissal for the Commission to examine.

“I find Mr Davitkov was not dismissed. He had no standing to make the application. This case had nothing to do with dismissal,” Colman wrote in the decision.

The ruling also criticised the purpose of the application. Colman said the case appeared to be a speculative attempt to obtain a financial settlement from Woolworths rather than a genuine unfair dismissal dispute.

“It was evidently a speculative claim made in the pursuit of a monetary settlement that would spare Woolworths the nuisance of defending it,” the decision stated.

The Commission also noted two other details that weakened Davitkov’s position. He ignored a direction to attend a telephone hearing, and the Woolworths matter was his fifth application to the Fair Work Commission in two years.

Why the claim failed

The case turned on a simple but important legal point. An unfair dismissal claim cannot succeed unless there has first been a dismissal. A worker may feel embarrassed, mistreated, or offended at work, but that alone does not prove their employer terminated the employment relationship.

In Davitkov’s case, the evidence showed that Woolworths did not tell him his employment was over. It also showed that he worked further shifts after filing the application. The Commission found he later stopped turning up, which is different from being dismissed.

That distinction matters for casual workers. A casual employee may work irregular shifts, accept or decline work, or stop attending shifts for different reasons. But for an unfair dismissal case, the worker must still show that the employer ended the job or created circumstances so severe that the worker had no reasonable choice but to leave.

The Fair Work Ombudsman’s guidance on unfair dismissal explains that employees must meet legal eligibility requirements before bringing a claim. The Woolworths decision shows how quickly a case can collapse when the dismissal element is not established.

The Commission did not treat the co-worker’s alleged comment as the central legal question. The comment may have been crude and embarrassing, but the unfair dismissal jurisdiction required the tribunal to ask whether Woolworths had dismissed Davitkov. On the evidence, the answer was no.

For employees, the ruling is a reminder that different workplace problems may require different complaint pathways. A rude comment, humiliation, bullying allegation, or workplace grievance may need to be raised through internal complaint procedures, workplace health and safety processes, or other legal options. It does not automatically become an unfair dismissal case unless employment has actually ended because of the employer’s action.

For employers, the decision highlights the value of clear records. Woolworths’ ability to show that Davitkov continued working after lodging his claim was crucial. Attendance records, shift histories, communication logs, and written responses to complaints can become important evidence when a workplace dispute reaches the Commission.

The case also comes at a time when major Australian retailers remain under scrutiny over workplace issues. Swikblog recently reported on another retail employment dispute involving allegations of excessive hours and unpaid work in the Kmart class action over 60-hour work weeks. While that case involves different allegations, it reflects the wider attention being placed on employment standards across the retail sector.

The Woolworths ruling is narrower, but still important. It does not decide whether the co-worker’s behaviour was acceptable. It does not say workers should ignore humiliating remarks. Instead, it makes clear that an unfair dismissal application must be based on an actual dismissal, not only on workplace embarrassment or emotional distress.

Davitkov’s claim ultimately failed because the Commission found Woolworths had not fired him. He continued working after the alleged incident, later stopped taking shifts, ignored a hearing direction, and could not show that the supermarket group had ended his employment.

For readers following workplace law, the lesson is direct: a bad workplace moment may support a complaint, but it is not always an unfair dismissal. In this case, the Fair Work Commission found there was no dismissal at all, leaving Davitkov without the legal foundation needed to pursue compensation from Woolworths.

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