Barker v Commonwealth Bank of Australia [2012] FCA 942

FEDERAL COURT OF AUSTRALIA

Barker v Commonwealth Bank of Australia [2012] FCA 942 Citation: Barker v Commonwealth Bank of Australia [2012] FCA 942

Parties: STEPHEN JOHN BARKER v COMMONWEALTH BANK OF AUSTRALIA

File number: SAD 187 of 2010

Judge: BESANKO J

Date of judgment: 3 September 2012

Catchwords: CONTRACTS – where applicant's role with respondent Bank made redundant – where applicant subsequently retrenched – whether failure to give required notice prior to termination of employment or payment in lieu pursuant to written contract of employment – whether breach of contract – whether failure to give notice deprived applicant of chance to be redeployed during notice period pursuant to respondent's redeployment policy. Held: The respondent failed to give the applicant four weeks' notice in breach of contract. CONTRACTS – where respondent's policies contained in a "Human Resources Reference Manual" and accessible on respondent's intranet – whether policies terms of applicant's employment contract – where statement of express exclusion of policies from employment contracts present in Human Resources Reference Manual – whether language of policies suggestive of contractual obligation or merely aspirational in nature – whether express incorporation – whether policies formed implied terms of applicant's contract by virtue of custom or established practice of respondent. Held: The statement of express exclusion prevents the policies being either implied as a matter of fact or expressly incorporated into the applicant's employment contract. CONTRACTS – existence of implied term of mutual trust and confidence in Australian law – whether serious breach by respondent of its own policy sufficient to breach implied term – whether serious breach of redeployment policy caused applicant loss or damage – whether damages available for breach of implied term – assessment of loss of chance – whether damages for hurt, disappointment and injury to reputation available – whether aggravated damages available. Held: The applicant is entitled to damages for loss of chance to be redeployed due to respondent's breach of implied term of mutual trust and confidence by acting in serious breach of its redeployment policy. TRADE PRACTICES – misleading and deceptive conduct – where general manager of respondent represented to applicant that his role would not change following employment of state manager – where responsibility of applicant reduced by two-thirds – whether representation misleading or deceptive or likely to mislead or deceive for purposes of s 52, 53B and 51A of Trade Practices Act 1974 (Cth) – whether representation made in "trade or commerce". Held: The representation was not made in "trade or commerce" for purposes of Trade Practices Act 1974 (Cth).