Unfair dismissal, not redundancy
I am often approached by employees who have been dismissed on the ground of redundancy, and have been paid statutory redundancy, but want to consider taking an unfair dismissal application to the Fair Work Commission on the basis that he or she regards the redundancy as manifestly unfair or an unfair dismissal dressed up as a redundancy in an endeavour by the employer to avoid an unfair dismissal finding.
One of the legal issues which arises in that situation is that of the implications of the employee having received statutory redundancy pay which of course is designed to compensate the employee for losing his or her job. For example, is it repayable if a subsequent unfair dismissal case succeeds?
I am only aware of one case on this issue and it suggests that the answer is yes.
In B v Roy Morgan Research Ltd  FWC 6694 delivered 6 September 2013 per Gooley DP, Her Honour 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 of earnings in that case 2 years’ remuneration and then discounted the resulting sum by 25 % for contingencies. Since that amount exceeded the statutory compensation cap of 6 month’s earnings, Her Honour applied the cap.