SA v McDonald

(2009) 104 SASR 344; [2009] SASC 219

Supreme Court of South Australia

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For Australian Law.

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Interrogate

Catchwords

1. Employment Law
2. › Contract of employment
3. › Implied terms
4. › Mutual trust and confidence
5. › Whether implied term of mutual trust and confidence exists in Australian employment contracts
6. › Whether term satisfies BP Refinery test for implication
1. Employment Law
2. › Contract of employment
3. › Implied terms
4. › Duty of care
5. › Safe system of work
6. › Whether cumulative conduct constituted repudiatory breach of implied contractual duty of care
1. Employment Law
2. › Termination of employment
3. › Constructive dismissal
4. › Repudiatory breach
5. › Whether employer's conduct amounted to repudiation entitling employee to terminate
1. Contract
2. › Implied terms
3. › Terms implied in fact
4. › BP Refinery test
5. › Whether term of mutual trust and confidence satisfies requirements for implication
6. › Whether term necessary to give business efficacy to contract

Quick Take

The implied term of mutual trust and confidence, as developed in English employment law, does not satisfy the BP Refinery test for implication of terms in Australian employment contracts, particularly where detailed statutory, award and departmental regimes govern the employment relationship. Poor management or inappropriate treatment of an employee does not necessarily constitute a repudiatory breach of the implied contractual duty of care. The question of whether such a term exists in Australian law remains open at the High Court level.