A Frus­trat­ed FWC: Look­ing beyond the ​“Plumber’s Crack”

The recent Fair Work Com­mis­sion (FWC) deci­sion in Antho­ny Davitkov v Wool­worths Group Lim­it­ed [2026] FWC 1655 has attract­ed much mirth because it refers to an employ­ee who brought a gen­er­al pro­tec­tions dis­missal appli­ca­tion because he was informed by a col­league that (and this was para­phras­ing from the pre­sid­ing mem­ber, Deputy Pres­i­dent Col­man), ​“the cleft of his bot­tom was pro­trud­ing from his trousers”. In oth­er words, to use a col­lo­qui­al expres­sion, there was some ​“plumber’s crack” exposed. The col­league then told the employ­ee with the wardrobe mal­func­tion, in ​“rude terms”, to cov­er up. 

This is not, how­ev­er, as some com­men­tary has wrong­ly assert­ed, a case about appro­pri­ate work­place attire and the impor­tance of employ­ers hav­ing poli­cies to pre­scribe dress stan­dards. The case does not even stand for that propo­si­tion. That is not why the appli­ca­tion was dis­missed. Instead, the deci­sion, which runs to just three para­graphs and is set out below in full, is the FWC lay­ing bare the chal­lenge it is fac­ing in deal­ing with a del­uge of unfair dis­missal and gen­er­al pro­tec­tions dis­missal cas­es, some incon­tro­vert­ibly devoid of mer­it, and the frus­tra­tion it is evi­dent­ly caus­ing to the work­place tribunal.

The back­ground is set out in para­graph 1:

“Any­one want­i­ng insight into the phe­nom­e­non of unmer­i­to­ri­ous claims in the Fair Work Com­mis­sion may wish to con­sid­er the case of Antho­ny Davitkov, whose appli­ca­tion under s 365 of the Fair Work Act 2009 I dis­missed ex tem­pore ear­li­er today. Dur­ing a casu­al shift at Wool­worths, Mr Davitkov was told by a cowork­er that (and I para­phrase) the cleft of his bot­tom was pro­trud­ing from his trousers. It was sug­gest­ed, in rude terms, that he cov­er up. Mr Davitkov was upset. His feel­ings were hurt. He lodged an appli­ca­tion alleg­ing that he had been dis­missed in breach of his work­place rights under Part 3 – 1 of the Act. He want­ed compensation.”

The source of the frus­tra­tion to Deputy Pres­i­dent Col­man is exposed in para­graph 2:

“What dis­missal? That was what Wool­worths want­ed to know. It said that Mr Davitkov con­tin­ued to work shifts after lodg­ing his claim and that he lat­er stopped turn­ing up for work. I so find. Mr Davitkov was not dis­missed. He had no stand­ing to make the appli­ca­tion. This case had noth­ing to do with dis­missal, or with Part 3 – 1 of the Act. It was evi­dent­ly a spec­u­la­tive claim made in pur­suit of a mon­e­tary set­tle­ment that would spare Wool­worths the nui­sance of defend­ing it. I was unable to put this to Mr Davitkov because he ignored my direc­tion to attend the tele­phone hear­ing. I note that this was Mr Davitkov’s fifth appli­ca­tion in two years.”

In para­graph 3 Deputy Pres­i­dent Col­man deliv­ers a homi­ly about how appli­ca­tions of this kind (which he describes as ​“spec­u­la­tive claims”) affect oth­er appli­cants, respon­dents, and the FWC:

“Unmer­i­to­ri­ous claimants have lit­tle to lose. This is unfair to respon­dents who have no case to answer. It is unfair to appli­cants with cas­es of sub­stance wait­ing their turn to be heard. The Act allows costs to be ordered in some cas­es, but very often there are no com­pens­able costs, only wast­ed time. There is no effec­tive dis­in­cen­tive for spec­u­la­tive claims, and so they come, in great num­bers, com­pound­ing the Commission’s bur­geon­ing caseload.”

The inun­da­tion of the FWC by gen­er­al pro­tec­tions dis­missal and unfair dis­missal claims in recent times has been blamed on var­i­ous fac­tors includ­ing some paid agents tout­ing for cas­es and, more recent­ly, the preva­lence of Arti­fi­cial Intel­li­gence tools to enable prospec­tive lit­i­gants to pre­pare and lodge appli­ca­tions (with­out the abil­i­ty, it seems, to prop­er­ly assess merit).

While the FWC has, as a mat­ter of nec­es­sary expe­di­en­cy, adopt­ed stream­lined dis­pute res­o­lu­tion pro­ce­dures to deal with the sheer vol­ume of gen­er­al pro­tec­tions dis­missal cas­es being filed, that needs to be bal­anced with dis­charg­ing its statu­to­ry oblig­a­tions pur­suant to sec­tion 368 of the Fair Work Act (2009)(Cth)(FWA) when deal­ing with such cas­es, par­tic­u­lar­ly in the issu­ing of cer­tifi­cates per­mit­ting mat­ters to progress to deter­mi­na­tion in either a FWC arbi­tra­tion or a fed­er­al court hear­ing (in prac­tice, almost invari­ably the latter). 

Sec­tion 368 of the FWA is in the fol­low­ing terms:

“368 Deal­ing with a dis­missal dis­pute (oth­er than by arbitration)

(1) If an appli­ca­tion is made under sec­tion 365, the FWC must deal with the dis­pute (oth­er than by arbitration).

(2) Any con­fer­ence con­duct­ed for the pur­pos­es of deal­ing with the dis­pute (oth­er than by arbi­tra­tion) must be con­duct­ed in pri­vate, despite sub­sec­tion 592(3).

(3) If the FWC is sat­is­fied that all rea­son­able attempts to resolve the dis­pute (oth­er than by arbi­tra­tion) have been, or are like­ly to be, unsuc­cess­ful, then:

(a) the FWC must issue a cer­tifi­cate to that effect; and

(b) if the FWC con­sid­ers, tak­ing into account all the mate­ri­als before it, that arbi­tra­tion under sec­tion 369, or a gen­er­al pro­tec­tions court appli­ca­tion, in rela­tion to the dis­pute would not have a rea­son­able prospect of suc­cess, the FWC must advise the par­ties accordingly.

(4) A gen­er­al pro­tec­tions court appli­ca­tion is an appli­ca­tion to a court under Divi­sion 2 of Part 4‑1 for orders in rela­tion to a con­tra­ven­tion of this Part.”

The statu­to­ry func­tion of the FWC pur­suant to this pro­vi­sion was con­sid­ered by Jus­tice Pagone of the Fed­er­al Court in Ward v St Catherine’s School [2016] FCA 790 (at 6):

“The pol­i­cy expressed in Divi­sion 8 of the Act is for dis­missal dis­putes to be dealt with by the Com­mis­sion rather than by the Court. Sec­tion 365 con­fers juris­dic­tion upon the Com­mis­sion to deal with a dis­missal dis­pute where the per­son dis­missed alleges that the dis­missal was in con­tra­ven­tion of Part 31 of the Act. A cir­cum­stance in which such an appli­ca­tion may be made to the Court is where a cer­tifi­cate has been issued by the Com­mis­sion under s 368(3)(a) in rela­tion to the dis­pute. That sec­tion provides:

(3) If the FWC is sat­is­fied that all rea­son­able attempts to resolve the dis­pute (oth­er than by arbi­tra­tion) have been, or are like­ly to be, unsuc­cess­ful, then:

(a) the FWC must issue a cer­tifi­cate to that effect; […]

[…]

It is sig­nif­i­cant that the cer­tifi­cate required by s 370(a)(i) to trig­ger a person’s enti­tle­ment to make an appli­ca­tion to the Court, is a cer­tifi­cate in which the Com­mis­sion express­es its sat­is­fac­tion about a state of affairs con­cern­ing the abil­i­ty of the dis­pute to be resolved by means oth­er than arbi­tra­tion. The enti­tle­ment under s 370 of the Act to make a gen­er­al pro­tec­tions court appli­ca­tion, in oth­er words, is made to depend upon the Commission’s eval­u­a­tion of the facts and cir­cum­stances bear­ing upon the prospects of the par­ties resolv­ing their dis­pute about dis­missal by means oth­er than arbi­tra­tion and pro­ceed­ings in Court (unless their appli­ca­tion includ­ed an appli­ca­tion for an inter­im injunc­tion). The statu­to­ry con­di­tion for a cer­tifi­cate from the Com­mis­sion reveals a clear leg­isla­tive pol­i­cy that such dis­missal dis­putes are to be dealt with by the Com­mis­sion, and by dis­pute res­o­lu­tion pro­ce­dures oth­er than by arbi­tral and judi­cial deter­mi­na­tion, unless those pro­ce­dures have been or are like­ly to be unsuc­cess­ful. The leg­isla­tive pol­i­cy is that Court process­es to resolve such dis­missal dis­putes are then only to be engaged when the Com­mis­sion, as an inde­pen­dent statu­to­ry author­i­ty, is itself sat­is­fied that those oth­er means for res­o­lu­tion of the dis­missal dis­putes are, or are like­ly to be, unsuc­cess­ful. It is not suf­fi­cient to enliv­en a litigant’s enti­tle­ment to bring a dis­pute to the Court for the dis­pute about dis­missal to have been referred to the Com­mis­sion unsuc­cess­ful­ly. Nor is it suf­fi­cient to enliv­en the enti­tle­ment to make a gen­er­al pro­tec­tions court appli­ca­tion in rela­tion to a dis­missal dis­pute that the dis­pute had been made to, and was pend­ing in, the Com­mis­sion. What is required to enliv­en the enti­tle­ment to make such an appli­ca­tion to the Court is not the mere for­mal­i­ty of a cer­tifi­cate by the Com­mis­sion but, rather, the cer­ti­fi­ca­tion by the Com­mis­sion of it being sat­is­fied that the dis­missal dis­pute is not able to be resolved by the alter­na­tive process specif­i­cal­ly pro­vid­ed for by the leg­is­la­ture.” (Empha­sis added)

The present dilem­ma in which the FWC finds itself is, unlike the ​“plumber’s crack” head­lines, no laugh­ing mat­ter. It needs to under­take, in the volu­mi­nous gen­er­al pro­tec­tions dis­putes brought before it, “…the alter­na­tive process specif­i­cal­ly pro­vid­ed for by the leg­is­la­ture”. Absent leg­isla­tive reform or addi­tion­al resourc­ing for the FWC, there appears to be no end in sight, which is to the detri­ment of all bona fide par­tic­i­pants and stake­hold­ers in the system.