Moves like Jagger: The High Court on Mutual Trust and Confidence

The law governing employment contracts has become significantly more black and white in recent months, following the High Court’s pronouncement in Commonwealth Bank of Australia v Barker that the implied term of mutual trust and confidence is, under the common law of Australia, dead

In doing so, the Court conclusively settled “one of the most contentious questions in Australian employment law,” and provided relief for nervous employers already concerned about their employment-related liability following Richardson v Oracle Corporation of Australia. Yet the Court’s reluctance to consider the associated implied term of good faith leaves another area of uncertainty awaiting further litigation.

Barker arose following the Commonwealth Bank’s decision in 2009 to make a senior and long-serving employee redundant as the result of restructuring. While the Bank attempted to find redeployment opportunities for Mr Barker, he had been stripped of access to his work email and so the Bank’s messages about such attempts did not reach him until just prior to the date of termination.

Before Besanko J of the Federal Court, Mr Barker claimed that the Bank “had failed to conduct the termination or redundancy process in a bona fide and/or proper manner.” This failure, he claimed, amounted to a breach of two of the Bank’s policies — its redundancy policy and its equal employment opportunity policy. Mr Barker founded his claim in contract on three alternative propositions — the policies were expressly incorporated into his employment contract; the policies were incorporated by practice and usage into his employment contract; or ‘his contract of employment included an implied term of mutual trust and confidence and that a serious breach of the policies was a breach of that implied term.’

Besanko J was not persuaded by the first two propositions, particularly as the Bank’s employment manual bluntly stated that it was “not in any way incorporated as part of any industrial award or agreement entered into by the Bank, nor does it form any part of an employee’s contract of employment.” However, after considering English cases and judicial recognition of the term in Australia, Besanko J found that “there is an implied term of mutual trust and confidence in the contract of employment between Mr Barker and the Bank.” Read More.

By John Wilson, Managing Legal Director, Employment Law

First published in Ethos, the ACT Law Society’s journal.