1
Fair Work Act 2009
s.394—Unfair dismissal
Clint Coorey
v
Australia Tile Wholesale Pty Ltd
(U2023/150)
COMMISSIONER MCKINNON SYDNEY, 24 APRIL 2023
Application for an unfair dismissal remedy – whether genuine redundancy – whether
dismissal consistent with the Small Business Fair Dismissal Code – whether dismissal harsh,
unjust or unreasonable – compensation ordered
[1] Until December 2022, Mr Clint Coorey and Mr Nick Burton, General Manager of
Australia Tile Wholesale Pty Ltd (ATW), were “best mates”. At that time, they were the only
two employees of ATW. Mr Coorey was employed in the role of Sales Manager/Sales
Representative (Wholesale Division), a role he began in November 2021. From approximately
June 2022, he also performed warehouse duties. On 16 December 2022, Mr Coorey was
dismissed. On 6 January 2023, he applied in time for an unfair dismissal remedy under section
394 of the Fair Work Act 2009 (the Act).
[2] Mr Coorey is protected from unfair dismissal because at the time of dismissal: he had
completed the minimum employment period of 12 months as an employee of ATW (a small
business employer); he was covered by the Storage Services and Wholesale Award 2020 (the
Award); and his gross weekly earnings of $1,346.15 placed him below the relevant high income
threshold.
[3] ATW submits that the dismissal was consistent with the Small Business Fair Dismissal
Code (the Code) but also that it was a case of genuine redundancy. The Code does not apply to
redundancies.
[4] The questions for decision are firstly, whether the dismissal was a case of genuine
redundancy; secondly, if the dismissal was for reasons other than redundancy, whether the
dismissal was consistent with the Code; and finally, if necessary to answer, whether Mr Coorey
was unfairly dismissed.
[5] I have decided that the dismissal of Mr Coorey was not a case of genuine redundancy.
The dismissal was not consistent with the Code. Mr Coorey was unfairly dismissed by ATW
and compensation is the appropriate remedy. These are my reasons.
[2023] FWC 927
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 927
2
Relevant facts
[6] There is no written contract of employment between Mr Coorey and ATW. Because Mr
Coorey came to work with Mr Burton as a friend, their arrangement was more of a ‘handshake
deal’. Mr Coorey offered to work with Mr Burton to build up the wholesale side of the business.
A commission arrangement was agreed, such that no commission would be payable for the first
six months of Mr Coorey’s employment, and a commission of 1.5% of total sales would be
payable to Mr Coorey after that time. There was no minimum sale amount required to qualify
for this commission, despite Mr Burton’s assertions to the contrary. In this respect, I prefer the
evidence of Mr Coorey. Despite the handshake agreement, no commission appears to have been
paid to Mr Coorey in relation to his employment with ATW.
[7] On Tuesday 6 December 2022, Mr Coorey and Mr Burton had a text message exchange
in which Mr Burton accused Mr Coorey of asking “stupid questions” and “laziness” – the latter
in relation to the failure to put away two boxes of tiles, each weighing 40-45 kilograms, that
were now broken. Mr Coorey responded disputing the accusations. It is clear that he did not
appreciate the message from Mr Burton, because at the end of his text message in reply, he
wrote:
“Lol laziness ya reckon tho. How bout we have a chat when you get here”
[8] On Monday 12 December 2022, Mr Coorey asked Mr Burton about the commission he
believed he was owed and when it would be paid. For four days, Mr Burton did not reply to the
request.
[9] Instead, at 5.21pm on Friday 16 December 2022, Mr Coorey was dismissed by text
message from Mr Burton. It is necessary to set out the text message in full:
“Ok, you wanted to get a rise out of me, it worked. I’ve been out here working like a dog
all week to try and keep the money rolling in so we can get through to the end of the
year… I just wanted to be left alone until the end of the year so I can clear my head and
figure out what I’m gonna do. My heads clouded and full of stress because of the
company. The stress doesn’t come from my side, it comes from your side, because every
month we are losing money having you employed in the wholesale. I’m trying to help
out and figure out a way to get the wholesale sales up, so we can be relieved of pressure,
just wanted to make it to the end of the year so I could clear my head and maybe re
adjust [sic] the business, but it seems your [sic] adamant on making a scene about your
so called commission…
Your sales for the year was 510k, average of 42k. The yearly target was 960k. Nearly
half the budget… Previous years of wholesale sales were 476k in 2020, and 366k in
2021 covid year. So you have pretty much sold the same as 2020, but the difference is
there is an extra wage… I was going to go into full details as to why your sales are
terrible, but there’s no point even trying to explain because you wouldn’t understand.
You get paid commission based on making budget. You made budget in 1 month of the
year, in March, the budget was 55k, and you sold 58,781.10. So you will get paid
$881.72 “commission” for that month.
[2023] FWC 927
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In the end of the day, the sales are not good enough, and your position is losing money,
every month. So unfortunately the company cannot keep you employed anymore.
The company will pay you:
- this weeks pay
- 2 weeks pay
- your annual leave (around 125ish hours)
- $881.72 in commission for March.
Drop the Ute, phone, laptop etc off to the warehouse tomorrow, leave the keys etc on
the desk, and the Ute in the parking spot. And put the warehouse keys back where they
are usually kept.”
[10] On 21 December 2022, Mr Burton sent Mr Coorey a letter of termination. The
covering email said:
“Hi Clint,
Please see attached redundancy letter. This is a template from the fair work ombudsmen
[sic]. As per the fair work regulations as seen on (https://www.fairwork.gov.au/tools-
and-resources/factsheets/minimum-workplace-entitlements/notice-oftermination-
and-redundancy-pay), there is a requirement to pay 2 weeks notice from the 16.12.22.
As stated by fair work, we are a small business, and there is no requirement for a small
business with less than 15 employees to pay a redundancy package. We have posted a
photo of the requirements of redundancy as per fair work.
[photo omitted]
ATW will also pay $881.72 as stated, in commission. The grand total of $3574.02 plus
your annual leave, which is around 125 hours, will be paid this Friday 23.12.22 which
is the next pay cycle.
In order to process the payment, we must receive back ALL work-related materials such
as Phone, Car, Drill, Laptop, etc, and any other associated tools. I have instructed you
on the 16.12.22 to return everything back, and then again on the 20.12.22 and yet to
receive anything back. We require the goods to be returned to the warehouse by 5pm
today, as per the instructions that were sent to you in text message twice.”
[11] The letter of 21 December 2022 (dated 16 December 2022) said this:
“Dear Clint
Termination of your employment by reason of redundancy
The purpose of this letter is to confirm the outcome of a recent review by Australia Tile
Wholesale of its operational requirements, and what this means for you.
http://www.fairwork.gov.au/tools-and-resources/fact
http://www.fairwork.gov.au/tools-and-resources/fact
[2023] FWC 927
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As a result of business slowing down due to slow sales the position of Sales
Representative is no longer needed. Regrettably, this means your employment will
terminate. This decision is not a reflection on your performance.
Australia Tile Wholesale has tried to find other suitable positions within the company,
however since the company is restructuring and changing the business model for 2023,
this means there is no longer any positions available.
Your employment will end immediately. Based on your length of service, your notice
period is 2 weeks as per fair works guidelines regarding redundancy for small
businesses. See the fair work fact sheet (https://www.fairwork.gov.au/tools-and-
resources/factsheets/minimum-workplace-entitlements/notice-oftermination-and-
redundancy-pay) for more information. In lieu of receiving that notice, you will be paid
the sum of $2692.30.
You will also be paid $881.72 in commission. A total of $3574.02 plus your annual
leave will be paid this Friday.”
[12] Mr Coorey was paid 2 week’s wages in lieu of notice of termination, and his accrued
annual leave. He was not paid the commission amount of $881.72. In my view, the
commission was not payable in any event as it related to sales within the first 6 months of Mr
Coorey’s employment.
Was the dismissal a case of genuine redundancy?
Did ATW no longer require Mr Coorey’s job to be performed by anyone because of changes in
its operational requirements?
[13] The reason for dismissal is apparent from the text message Mr Burton sent to Mr Coorey
on 16 December 2022. Mr Burton was stressed due to financial pressure on the business. When
Mr Coorey asked him about payment of commission (which he estimated was approximately
$7,500), this increased Mr Burton’s stress. Mr Burton became upset and decided to dismiss Mr
Coorey both because his sales were poor and the wholesale division of the business was losing
money. I find that Mr Burton no longer required Mr Coorey’s job to be performed by anyone
because of a change in its operational requirements – being the decision to no longer employ a
salesperson in the wholesale division.
Failure to consult under the Award
[14] A dismissal will not be a genuine redundancy for the purposes of the Act unless ATW
complied with relevant consultation obligations under the Award.1 However, in this case I do
not consider that the Award required ATW to consult with Mr Coorey in relation to his
dismissal.
[15] Clause 30 of the Award applies if an employer makes a definite decision to make major
changes in production, program, organisation, structure or technology that are likely to have
significant effects on employees. In the context of ATW’s business, the decision to no longer
http://www.fairwork.gov.au/tools-and-resources/fact
http://www.fairwork.gov.au/tools-and-resources/fact
[2023] FWC 927
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employ Mr Coorey was not a decision to make a major change that was likely to have significant
effects on “employees”. It only affected one employee, being Mr Coorey.
Reasonable redeployment
[16] A dismissal is not a case of genuine redundancy if it would have been reasonable in all
the circumstances for the person to be redeployed within the employer’s enterprise or that of
one of its associated entities. Mr Coorey submits that he could have been redeployed to the
vacant warehouse worker position advertised a few weeks after he was dismissed. I agree with
this submission.
[17] Despite the contents of the ‘template’ letter sent by ATW to Mr Coorey, including that
it had “tried to find other suitable positions within the company” and that there was “no longer
any positions available”, there was an available warehouse position, and Mr Coorey had been
performing work of that kind since June 2022, although not on a full-time basis.
[18] It would have been reasonable to redeploy Mr Coorey within ATW to the position of
warehouse worker. It follows that the dismissal was not a case of genuine redundancy.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[19] The dismissal was not consistent with the Code, because the Code does not apply to
redundancies. While the dismissal was not a case of genuine redundancy, it was nevertheless a
redundancy. At the time of dismissal, ATW no longer required Mr Coorey’s role to be
performed by anyone. It does not matter that some or even all of his duties were taken on by
Mr Burton, who also continued to perform his role as General Manager.
Was the dismissal harsh, unjust or unreasonable?
[20] Whether a dismissal was harsh, unjust or unreasonable depends on an assessment of all
the relevant facts and circumstances, including those set out in section 387 of the Act. Those
are considered in turn.
Was there a valid reason for the dismissal related to capacity or conduct, and was it notified to
Mr Coorey?
[21] I find that there was a valid reason for the dismissal of Mr Coorey on the basis that ATW
no longer required his role to be performed by anyone, for the reasons above. Mr Coorey’s sales
performance was a contributing factor to the decision to make his role redundant, and in this
sense the reason for dismissal was related to his capacity to perform the role. The reason for
dismissal was notified to Mr Coorey on 16 December 2022 in the text message from Mr Burton.
Was there an opportunity to respond to any capacity or conduct related reason?
[22] There was no opportunity for Mr Coorey to respond to the reasons given for his
dismissal. He was dismissed without prior notice or warning, and with immediate effect.
[2023] FWC 927
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Was there any unreasonable refusal to allow a support person to be present to assist at any
discussions relating to dismissal?
[23] There was no unreasonable refusal to allow Mr Coorey to have a support person to assist
in discussions about the dismissal. There was no discussions about the dismissal.
Was Mr Coorey warned about relevant unsatisfactory performance?
[24] Mr Coorey was not warned about unsatisfactory performance before he was dismissed.
I reject Mr Burton’s submissions to the contrary and find Mr Coorey’s submission on the matter
to be more credible because it is consistent with his obvious surprise at being dismissed without
notice or warning on 16 December 2022.
Degree to which the size of the employer’s business and any absence of dedicated human
resources management specialists or expertise in the business would be likely to impact on
procedures followed in effecting the dismissal
[25] The size of ATW suggests that it had no human resources or other specialist expertise
to assist with the process of bringing an end to Mr Coorey’s employment. This is likely why
there was no procedural fairness in relation to the dismissal – together with the fact that the
relationship between Mr Burton and Mr Coorey was more personal than professional.
Other relevant matters
[26] Mr Coorey was paid 2 week’s wages instead of notice of termination. Redundancy pay
was not payable to Mr Coorey because ATW was a small business employer.
[27] I accept that Mr Coorey’s request to be paid commission was a contributing factor to
the decision to dismiss. However, it was not the only reason. The explanation given by Mr
Burton on 16 December 2022 reveals a much more complex picture: of a business division not
living up to expectations, despite the best intentions of two close friends, and the breaking down
of that relationship alongside an increase in financial pressure.
Conclusion on the merits
[28] I find that Mr Coorey was unfairly dismissed. While there was a valid reason for
dismissal, the dismissal itself was unreasonable because it was entirely lacking in procedural
fairness.
Compensation
[29] Reinstatement is not an appropriate remedy in this case because the relationship between
Mr Burton and Mr Coorey has broken down. Compensation is instead the appropriate remedy.
[30] Section 392(2) of the Act deals with how compensation is to be assessed in connection
with an unfair dismissal. The established methodology is elaborated on in Bowden v Ottrey
Homes Cobram and District Retirement Villages Inc.2
[2023] FWC 927
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Viability (s.392(2)(a))
[31] There is some material before me to indicate that an order for compensation will affect
the viability of ATW, at least in relation to its wholesale division. However, ATW appears to
have access to funds to continue to trade and to pay a small additional amount to Mr Coorey in
the name of commission. No adjustment is made to the assessment of compensation on this
basis.
Remuneration Mr Coorey would have received, or would have been likely to receive, if not
dismissed (s.392(2)(c))
[32] Had he not been dismissed, and instead been offered the warehouse role, it is likely that
Mr Coorey would have remained in employment with ATW for a further six weeks, until the
end of January 2023. I do not think it is likely that Mr Coorey’s tenure in the warehouse would
have lasted much longer, given Mr Burton’s expressed opinions about his unsuitability for the
role.
[33] Mr Coorey’s weekly wage was $1,346.15 gross. I find that Mr Coorey would have
earned $8,924.97 gross (the equivalent of 6 week’s pay plus superannuation) had he not been
dismissed.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
[34] Mr Coorey was paid 2 week’s wages instead of notice of termination. He has not earned
any other income since the dismissal. The amount of compensation is reduced on this basis by
the equivalent of 2 week’s wages (plus superannuation), to $5,949.98 gross.
Length of service (s.392(2)(b))
[35] Mr Coorey’s period of service was approximately 13 months. No adjustment is made in
relation to the assessment of compensation on this account.
Mitigation efforts (s.392(2)(d))
[36] Mr Coorey submits that he has applied for multiple jobs since the dismissal without
success. While this is difficult to understand in the current labour market, particularly in relation
to sales and warehouse-type roles, there is no evidence to contradict the submission. It does not
affect the assessment of compensation.
Other matters (s.392(2)(g))
[37] No adjustment to the amount of compensation is made for contingencies because of the
known period since dismissal and the likelihood that little will change in the circumstances of
Mr Coorey between the date of hearing and decision.
Misconduct (s.392(3))
[2023] FWC 927
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[38] There is no evidence that misconduct was a contributing factor to the dismissal. No
reduction in the amount of compensation is appropriate under section 392 of the Act.
Shock, Distress (s.392(4))
[39] The amount of compensation does not include a component for shock, humiliation or
distress.
Compensation cap (s.392(5)&(6))
[40] The amount of $5,949.98 gross is less than the compensation cap of 26 weeks’ pay. No
further adjustment of the amount is necessary.
Instalments (s.393)
[41] While ATW did not apply to pay any order for the payment of compensation by
instalments, I consider it appropriate that such an order be made. This is due to the evident
financial pressures on Mr Burton and the very small size of ATW’s business. The compensation
amount will be payable in three separate weekly instalments.
Conclusion on remedy
[42] The compensation amount of $5,949.98 gross is neither excessive nor inadequate in the
circumstances of the case. For the reasons above, I am satisfied that a remedy of compensation
in this amount is appropriate in all of the circumstances. An order [PR761221] will issue
separately giving effect to this decision.
COMMISSIONER
Appearances:
C Coorey on his own behalf.
N Burton for the respondent.
Hearing details:
2023.
Sydney (by video):
April 12.
Printed by authority of the Commonwealth Government Printer
WORK R WORK MMISSION THE F AUSTRALIA THE SEAL
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr761221.pdf
[2023] FWC 927
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PR761220
1 Fair Work Act 2009 (Cth), s.389(1)(b).
2 [2013] FWCFB 431.
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
