The Commonwealth Bank of Australia is off to the High Court to establish once and for all that, as employers, we don’t have any trust and confidence in our employees. More precisely, the CBA is contesting a decision from August this year by the Full Bench of the Federal Court that an implied term of mutual trust and confidence exists in every employment contract in Australia. Just last week, the High Court granted the CBA special leave to appeal.
The case was brought after the CBA failed to explore redeployment opportunities for a long standing employee who was made redundant. The CBA is 0-2 so far, with the Federal Court, and then Full Bench, determining that the implied term exists in all employment contracts. The Bank’s failure to take any steps to find the redundant employee an alternative position was found to have breached the implied term (the Full Bench’s reasoning however, differed considerably to the single judge’s decision at first instance).
The CBA hopes that third time’s a charm with its appeal to the High Court. Whatever the outcome, it will be nice to finally get some certainty in this area as the ambiguity over the existence of the implied term of mutual trust and confidence is an issue that has plagued Australian employment law for years.