Employment: Implied terms of trust & Confidence

Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (6 August 2013)


Date of judgment:
6 August 2013
CONTRACTS – where respondent’s position with appellant Bank was made redundant – where primary judge granted damages for appellant’s breach of implied term of mutual trust and confidence by acting in serious breach of its redeployment policy – whether primary judge erred in finding implied term of mutual trust and confidence – principle in Malik v Bank of Credit and Commerce – implied term held to form part of Australian employment contracts
– content of implied term – whether primary judge erred in finding that the appellant breached implied term – where implied term not applicable to dismissal – implied term distinct from a fiduciary duty – implied term to be moulded according to the nature of the ongoing employment relationship – breach of implied term upheld due to appellant’s failure to take positive steps to provide respondent with the opportunity to seek redeployment – respondent entitled to damages for loss of chance to be redeployed
– implied duty of co-operation in employment contract – where employment contract provided for the opportunity of redeployment where position made redundant – implied obligation of co-operation required appellant to take positive steps to allow respondent to seek redeployment


David Cormack – Brisbane Barrister.

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