Commonwealth Bank of Australia v Barker [2013] FCAFC 83

Commonwealth Bank of Australia v Barker [2013] FCAFC 83

The majority held that, in an intermediate appellate court, the implied term of mutual trust and confidence should be recognised as part of Australian employment contracts, at least for conduct anterior to a dismissal. The Bank breached the implied term by failing to take positive steps to provide Barker with an opportunity to seek redeployment. Damages for loss of chance to be redeployed were upheld; however, damages for distress and loss of reputation were not recoverable.

Jurisdiction
Australia
Judgment Date
06 August 2013
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal dismissed; cross-appeal dismissed (except as to calculation error)
Legal Topics
['implied Terms' 'mutual Trust and Confidence' 'employment Contract' 'redundancy' 'redeployment' 'duty of Co Operation']
['contracts' 'employment Law'] ['implied Terms' 'mutual Trust and Confidence' 'employment Contract' 'redundancy' 'redeployment' 'duty of Co Operation']

Case Brief

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Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether Australian employment contracts contain an implied term of mutual trust and confidence' 'Whether breach of a non-contractual redeployment policy breaches the implied term' 'Damages for loss of chance to be redeployed']

Ratio Decidendi

The majority held that, in an intermediate appellate court, the implied term of mutual trust and confidence should be recognised as part of Australian employment contracts, at least for conduct anterior to a dismissal. The Bank breached the implied term by failing to take positive steps to provide Barker with an opportunity to seek redeployment. Damages for loss of chance to be redeployed were upheld; however, damages for distress and loss of reputation were not recoverable.

Court Disposition

Appeal dismissed; cross-appeal dismissed (except as to calculation error)

Orders

  • ['The appeal be dismissed with costs.' "The order made on 3 September 2012 by Besanko J be varied nunc pro tunc by replacing '$317,500' with '$335,623.57'." 'The cross-appeal be otherwise dismissed.' 'The cross-appellant pay the costs of the cross-appeal.']