Compensation for unfair dismissal: deduct redundancy pay?

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Employee was dismissed by his employer on the basis that is position had become redundant but without the statutory consultation which is required by s.389 of the Fair Work Act for it to constitute a “genuine redundancy” and thus be a complete jurisdictional defence to the employer. The employer paid the employee the statutory redundancy pay provided for by s.119 of the Act and the issue is whether or not that will be notionally deducted from an award of compensation for unfair dismissal, since if the dismissal was unfair and was not a genuine redundancy, statutory redundancy pay would not technically be payable.

There is very little case law which I have been able to find on this point.

The position according to the English cases is that any redundancy pay will be deducted from an award of compensation for unfair dismissal however there is one Australian case on the point.

In B v Roy Morgan Research Ltd [2013] FWC 6694 (6 September 2013) Deputy President Anne Gooley found that a dismissal did not arise from a genuine redundancy and was otherwise unfair; so in calculating compensation she deducted the severance payment and the redundancy payment from what she estimated was the loss (ie 2 years’ remuneration”) and then discounted the resulting sum by 25 % for contingencies. Since that amount exceeded the cap, she applied the cap.