Dear Colleagues;
In Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014) http://www.austlii.edu.au/au/cases/cth/HCA/2014/32.html a
5-member bench of the High Court of Australia has declined to follow the decision of the House of Lords in Malik v Bank of Credit and Commerce International SA [1997]
UKHL 23; [1998]
AC 20 and has ruled that there is no implied term in contracts of employment that "the employer will not, without reasonable cause, conduct itself
in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.
The reasons for so ruling include a reassertion of the rule that any term which is implied into contracts generally must be “necessary” for the effective operation of the
contract, not merely “reasonable”- eg [29]; that Malik was a development of the common law responding to particular circumstances in the UK which were not present in Australia- see [32] ff; and that the implication of such a term would have wide reaching
consequences (including for obligations owed by employees, who were not represented before the court on that point! [38]) which were more appropriate for Parliaments than the courts. The detailed regulation of unfair dismissal claims in Australian law was
also offered as a reason not to imply common law terms- in effect, as Gageler J noted, extending the principle that the common law should not create “incoherence” in the law by clashing with a statutory scheme, from the law of torts where it has previously
operated, into the law of contracts- see [118].
Regards
Neil
NEIL FOSTER
Associate Professor
Newcastle Law School
Faculty of Business and Law
Faculty of Business and Law
Further details: http://www.newcastle.edu.au/profile/neil-foster
The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
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