2. Has there been a breach of a contractual term of employment?

A. Have the basic elements of contractual formation been established?

[likely to be uncontentious] – one line stating they have been satisfied, or assumed to be satisfied.

We will assume that the basic contractual elements of offer, acceptance, consideration, certainty and

completeness are satisfied. There is no evidence that X or Y did not intend to create legal relations, or

did not have the capacity to do so thus invalidating this contract.

B. What is the nature of the term being breached?

Is the term an express or implied term? What are the consequences of this distinction??

a) Express term? The contractual obligation to ______ is an express term set out in the letter of offer/contract of

employment/workplace manual or policy/oral agreement.

Workplace Policies

A workplace policy can affect a contract in two ways:

1) Be incorporated into the employment contract (as an express term)

2) May constitute a lawful and reasonable direction that an employee is willing to obey (see

below)

TEST: A workplace policy will be incorporated into the contract “If a reasonable person in the position

of the promisee would conclude a promisor intended to be contractually bound in the contract for

employment” (Black J in Goldman Sachs JBWere Services Pty Ltd v Nikolich)

Cases for analogy – Contrast Goldman (term was part of contract) with Whittaker (term was not part

of the contract)

Yousif v Commonwealth Bank of Australia (2010) 193 IR 212.

Employer inserted the following clause in the workplace policy manual – the manual

is not in any way incorporated as part of any industrial award or agreement by the

bank, nor does it form part of any employees contract for employment.

Held – the above clause meant that the policies were not incorporated in the

contract

Note – the policy manual included a clause stating that employees have to comply

with policies and procedures.

Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120

NEED TO REREAD MORE CAREFULLY

FACTS:

o Workplace manual ‘working with us’ (WWU) – employer would take all

practical steps to ensure a safe working environment

o N argued several terms formed part of the contract

health and safety statement – the firm “will take every practicable

step to provide and maintain a safe and healthy work

environment for all people”

o Alleged breach of the health and safety clause - N said that S had engaged

in conduct against him including personal attacks, threatening and

disturbing actions, false accusations; caused N a large amount of anxiety

that he said eventuated into a psychiatric illness

DECISION:

o ‘health and safety’ statement had contractual effect, and is therefore an

express term of the contract.

language used - need promissory rather than aspirational

language (not determinative in and of itself)

not clear the language was contractual – could be seen as

aspirations

context

said the context is decisive – several statements in the

policy agreement regarding positive and fair treatment of

employees

would be hypocritical of the co if not enforced

clearly aligns with the companies ethos

supported in broad equivalence with an employer’s common law

duty of care

context in which the contract was signed -

at the time N signed the contract, had a copy of the

manual with him

was required to sign-off on key sections of the manual

o NB: Signing forms acknowledging some

provisions does not weigh against the party’s

choice to include other provisions

Include a line comparing to Marshall J’s reasoning.

o there had been a breach of the H&S clause – the employer actions were

too late given the severity of the breach.

o causation –

accepted the expert evidence that the psychiatric injury was

caused by failure to act quickly

NB: important that the causation was not the reallocation decision

b/c this was accepted by both parties as not a breach of contract

and therefore if his illness was caused by reallocation he could not

claim damages

o remoteness not too remote

ordinarily mere disappointment and distress as a result of a

breach of contract do not result in damages. One exception –

where the promise itself is to provide peace of mind (in Baltic

Shipping Company v Dillon; NB: not usually favoured by the

courts)

However black said he was dealing with a psychiatric injury, not

mere distress (therefore did not deal with the above)

Whittaker v Unisys Australia Pty Ltd (2010) 26 VR 668 (to be covered in the seminar)

Contrast to the case above

FACTS:

o Employee wanted to claim the benefit of the company’s redundancy

policy

o There was a letter of offer – referred to a number of policies but not

the redundancy policy

o argued that it is generally the practice to incorporate the policy – he

had made people redundant

ISSUE: Whether a redundancy policy formed part of W’s contract?

DECISION: The redundancy policy did not form part of the contract

o Factors considered:

no express reference to the policy in the letter of offer; nor

are there more generally expressed provisions which may be

said to incorporate the policy

not required to sign a copy of the policy, but required to sign

other docs

a copy of the policy was not provided at the time he accepted

the offer

the fact the letter of offer uses the term redundancy should

hold no weight

NB: Discussion of Wood – the court rejected an argument by the employer in

this case that a general statement saying ‘you must comply with’ does not

create a mutual obligation

b) Implied by fact These are terms implied on the basis of the imputed intention of the parties.

i) Formal contract

TEST: The court will find a term is implied by contract to make it ‘complete on its face’ if the

following conditions set out by Justice Byrne in BP Refinery are satisfied:

‘[F]or a term to be implied, the following conditions (which may overlap) must be

satisfied:

(1) it must be reasonable and equitable;

(2) it must be necessary to give business efficacy to the contract, so that no

term will be implied if the contract is effective without it;

(3) it must be so obvious that “it goes without saying”;

(4) it must be capable of clear expression;

(5) it must not contradict any express term of the contract.’

ii) Informal contract

TEST: The court will find a term of an informal contract, that is one that is oral or partly oral,

if it is “necessary for the reasonable or effective operation of a contract of that nature in the

circumstances of the case” (Hawkins v Clayton; confirmed in Byrne v Australian Airlines)

c) Implied by law

‘[T]erms implied by law are, in general, implied in all contracts of a particular class or which answer a

given description (Byrne v Australian Airlines)

TEST: In University of Western Australia v Gray the court found the term must be necessary, taking

into account a broad range of considerations including;

The inherent nature of the contract and the relationship thereby established

Justice and policy

Consequences within the employment relationship

Social consequences

[Byrne – implied by fact only test? Notes are a bit confusing]

Cases for analogy:

University of Western Australia v Gray (2009) 179 FCR 346, 377

Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151, 193–7

Has it been expressly excluded by the parties?

i) duty to obey lawful and reasonable directions

An employee has a duty to obey all lawful and reasonable directions.

TEST: 3 factors set out in R v Darling Island Stevedoring and Lighterage Co Ltd

1) Relate to the subject matter of employment

2) No illegality

3) Reasonable- take into account the following:

a) The nature of the employment

b) the established usages affecting it

c) the common practices which exist

d) provisions of the instrument

e) supply considerations by which the determination of what is reasonable

must be controlled

If an employee objects that the order would expose them to risk, must establish a

case of substantial danger outside the contemplation of the contract of service.

Adami v Maison de Luxe Ltd (1924) 35 CLR 143:

Reasonable direction

FACTS:

manager of a dancehall who refused to obey a direction of his employer to

work on Saturday afternoons

The manager delegated his work on Saturdays to someone else

dismissed for his refusal to work on Saturday afternoons

HCA held the direction was lawful and reasonable

failure to comply amounted to a breach of contract

amounted to a breach by the employee to comply with lawful and

reasonable directions

Reasoning:

nature of business – such that it was clearly within the contemplated scope

of the employer's rights to select Saturday afternoons as a means for

popularizing or extending the business

Ottoman Bank v Chakarian (1930) AC 277.

Unreasonable direction because of the danger to the employee

FACTS: Sent to work in a country where he faced a real risk of death

DECISION: Employee not required to comply with the direction

Workplace policies

A term of a workplace policy may constitute a lawful and reasonable direction which an

employee is required to obey (Downe v Sydney West Area Health Service (No 2))

The employee will have to obey this term even if it does not form part of the contract.

Cases for analogy:

Dress standards

Australian Telecommunications Commission v Hart (1982) 43 ALR 165.

issue – could the employer direct the employee who had connections with the

public to refrain from wearing thongs and a kaftan to work

reasonable and lawful direction

Woolworths Ltd v Brown (2005) 145 IR 285

NB: This is an unfair dismissal case – not covered until Wk 6

FACTS:

policy limited the amount of jewellery b/c of workplace safety standards

an employee had an eyebrow ring, put a blue bandaid over the ring for two

years

a new manager came in – there was a warning and a number of requests to

remove the eyebrow ring

the employee was refused – was fired

DECISION

Was lawful and reasonable direction for him to remove the eyebrow ring –

therefore it is an implied term of the contract

Reasoning

there was a risk, however remote of the bandaid falling into the food and

contaminating it

lawful and reasonable for the employer to take steps to mitigate that risk

Out of hours conduct

McManus v Scott-Charlton (1996) 70 FCR 16

Key Case referred to re whether an employer control the conduct of an employee

outside class hours

FACTS:

M was an administrative officer at Ausaid

made a number of unwelcome advances to a number of employees at

Ausaid

after these claims were made – he was counselled by his employer and

given a number of directions

o in particular a letter – you are formally requested not to contact

PB (one of the women) outside official duties

contacted PB - Proceedings were initiated against him

ISSUE: Was it a lawful and reasonable direction?

DECISION: Was a lawful and reasonable direction

Judge recognises in some circumstances the employer is entitled to

regulated what the employee does outside work time

once the e’s conduct can be shown to have significant and adverse effects

in the workplace b/c of impact on workplace relations, activity of others or

the effective conduct of the employees business it becomes a matter of

legit concern to the employer and does so b/c of its consequences

reasoning

o knowledge and acquaintance with his position at Ausaid that

allowed him to subject these women to harassment – because

they were employees, it is workplace related

o lawful for an employer to give an employee a direction to stop

harassment where two conditions are satisfied

that harassment can reasonably be said to be a

consequence of the relationship of the parties as co-

employees

the harassment has had, and continues to have,

substantial and adverse effects on workplace relations,

performance and/or the efficient equitable and proper

conduct of the employers business b/c of the promixity of

the harasser and the harassed person in the workplace

evidence of adverse effect inclu. stress to

women, decreased productivity from discussing

the situation and escalating it to superiors

o Be different if facts were different – for example, if the employees

had cohabited or were married and now restrained – obviously

first condition not satisfied b/c the problem did not arise out of

their relationship as coemployees

These comments have been applied to out of hours conduct that does not

include sexual harassment

Workplace change

Cresswell v Board of Inland Revenue [1984] 2 All ER 713.

Taxation officers working for the Board of Inland Revenue. Originally, the systems

were not computerised. They argued this was a breach of contract because the

employer was unilaterally changing their conditions of employment.

Held – the employees were expected to adapted to new conditions by the employer

Not a unilateral variation of the contract – the changes changed the

manner in which services were carried out not the nature of those services.

ii) duty of good faith and fidelity

The duty of good faith and fidelity is implied by law into all contracts of employment

Employees have an obligation to their employer – do employers have an obligation?

What would be a breach of the obligation of faithful service and fidelity?

o Conducting a competing business: Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR

298.

o Diverting work whilst still employed

o Where the employee prepares to set up a competing business which becomes

operational after the employee leaves employment; or

o The employee works in multiple jobs.

Preparing to setup a competing business

General Rule: Employees can plan to establish a competitive business whilst still

employed.

However, employees cannot undertake competitive activity that undermines the

employer’s current business

Activities that have been found to constitute a breach include;

Soliciting the employer’s clients to join the new business (See Weldon)

o If an employee works for an employer, resigns but is serving out a

notice period, a client asks where you are working and you say

where so are working alone that is not a breach

o However, if you redirect the client to that work or new business,

that is a breach

Soliciting the employer’s staff to join the new business

o cannot encourage colleagues to leave and work with you whilst

working (even if serving out notice period) – but again, can say

where you are going

Deliberately removing copying and/or memorising any of the employer’s

commercially sensitive or valuable information such as customer lists (see

Robb v Green)

o If the employee retains the customer information in their head

through natural recollection, not by purposeful memorisation,

that will not be a breach

Cases for analogy

Robb v Green [1895] 2 QB 315

Employee was a tradesman, working for an employer and decided to set up

a business

the employee wrote down all the employer’s customer details

the employer got an injunction prohibiting the employee from using the

customer list

Weldon & Co v Harbinson [2000] NSWSC 272

FACTS: o H worked in a accountancy firm

position:

senior employee

high degree of responsibility

was a long standing employee (10 years) – emigrated to Aus through sponsorship of Weldon

had direct contact with clients – with little/no intervention by W

main role – accounting for small business inclu.

preparing company accounts

annual tax returns

corporate and individual tax records no contract

had a letter setting out some terms of employment (such as remuneration)

large portion of the contract left unwritten

no express agreements re use of confidential information or restraint of trade upon termination of employment

o H decided to set up own accounting practice o Whilst employed (incl. serving out notice period)

resigned arranged professional indemnity insurance

o When employment terminated made offers to clients to do accounting work - boss

alleged this was through use of a client list est own practice (one month after contract terminated)

ISSUE: o

Key principles from this case: o former employees are free to compete o former employees are not entitled to remove employer’s lists of

customers – remedies are in property rights o contract for employment has an implied promise to serve with

good faith and fidelity – loyalty is required – will have breached this if w/o approval the employee:

conducts competing business activities whilst employed takes preliminary steps to est a competing business in a

way that is not loyal to the employ – e.g. making copies of employer lists, canvasing the current clients etc.

remedies – breach of contract o employee incurs fiduciary duties relating to protection of interests

of the employer - cannot misuse trade secrets and confidential information intercept a maturing business opportunity, that they cm

by whilst employed NB: These concepts are not highly defined – what

constitutes them will depend on the circumstances

DECISION: o Not contested - Defendant should incur fiduciaries duties in

regards to both confidential information and interception of maturing business opportunities – classified as a senior exec b/c of nature of duties

o 5 allegations 1. Performed work for clients whilst still employed

Conduct – these private clients were not clients of the employees (occasionally within office hours)

Worked for some clients as a favour

Worked for two clients for fees (amounting to $500)

Work for a client after – but was approach whilst employed and did preliminary work

Contract was silent as to whether she could perform work for clients

Rule: look at actual/potential impact on business

therefore should only relate to work for which there was a business opportunity

for professional work/high skilled employees – a high level of loyalty is needed

therefore the duty of good faith and fidelity may stipulate what an employee can do outside of working hours and limit competitive behaviour

In this case

highly skilled/professional work

small firm where she had direct contact with many clients

had large remuneration given her work

duty of gf&f req her not to conduct a rival business or divert paying customers

In breach for work performed for paying clients – Damages of $500 awarded to Weldon (or account of profit for $500)

Not in breach of duty of loyalty and good faith for volunteer work b/c no commercial opportunity to make earnings; was done on the basis of friendship and favour

Not in breach of the duty of loyalty and good faith for being approached by Bartlett to become their accountant when she started her new role, agreeing to do their work and taking preparatory steps such as writing to the former accountants, and two letters to the client

NB: There was an argument that Weldon also be compensated for the office supplies used in performing work for the client. This was denied as the damages were seen to be nominal

2. Solicited Clients she told two clients for whom she did work she was

leaving, and when asked she said to start her own business – they later became her clients

was a courtesy – nothing to make it amount to soliciting a client

to have solicited clients – must do more than engage in competition

3. Copying of client lists records in H’s possession were not complete and in no

structured form (clearly from memory and phone books) – therefore reject the evidence that they were compiled directly

no violation of the employer’s property rights confidential information re the ID of clients –

employer entitled to use any information that falls short of a trade secret

whilst there is a need for a degree of discretion as to a client’s ID, no confidentiality as to ID (Cf client’s affairs) and some of this info must be provided to public authorities

it is info the employee must only treat oas confidential whilst employed

information such as ID of customers is ‘know-how’ – inextricably bound up in the employees

ordinary stock of knowledge where it would be artificial to remove it

4. Made copies of fee estimates No evidence of the lists was found to be made out

5. Intercepted a maturing Business Opportunity there is a distinction between a maturing business

opportunity and work performed in the past

maturing business opp generally arises where there is an opportunity to supply goods or services, and it is approaching the stage where a contract will be reached, such that it would be unconscionable to divert those opportunities (As in Canaero)

CF a former employee canvassing customers for work that has been supplied in the past

need to look at the facts

here annual cycle of lodgements

she was seeking retainers for commissions the next years work, not continuation of existing commissions

did not take the maturing business opp. as work was not completed?

o Total damages - $500

Working multiple jobs

Whether working multiple jobs constitutes a breach depends on the

circumstances, especially:

The nature of the second job

The level of seniority of the person

Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169

FACTS:

Involved two companies – Hivac and Park Royal

Hivac – made valves for hearing aids and radios

Mr & Mrs Davis – highly skilled manual workers

worked for Hivac during the week, then Park Royal on weekends

Park Royal was Hivac’s first competitor in the hearing aid market

Mr & Mrs Davis, also encouraged some others to come work at PR

for extra money

DECISION

was a breach of their duty of fidelity to work for a competitor and

encourage others to work for the competitor

why? b/c of the skilled nature of the job

iii) employee’s duty of warranty of skill

The warranty of skill is a term implied by law into the contract of employment that an employee has the requisite skills to carry out their work competently. Qualification – where the employee discloses prior to employment they do not have the required skills, and the employer decides to hire them with the intention to train them to carry out the work competently. If the employer knows a particular employee does not have the required skills to perform the job competently, the employee will not be required to perform work to that standard on the basis they will be trained later (Printing Industry Union v Jackson)

iv) employee’s duty of care

It is a term implied by law into the contract of employment that an employee will perform their work with reasonable care. NB: If negligent, the employer may be vicariously liable

v) employee’s duty of disclosure

General rule: an employee does not have a duty to disclose his/her own misconduct to an employer (Bell v Lever Brothers). Note that the court cast doubt on this proposition in Concut Pty Ltd v Worrell, but did not directly address the rule in Bell. Exception: an employee who has a supervisory role has a duty to disclose the misconduct of those under his/her supervision (Sybron Corp v Rochem) Bell v Lever Brothers

o FACTS: Two employees were able to negotiate a favourable compensation package for the early termination of their contracts for employment

o After their contracts were termination, the employer discovered they had engaged in misconduct. The employer sought a restitution action for the compensation payments.

o DECISION: Did not have a duty to disclose the misconduct whilst negotiating the compensation payments

Concut Pty Ltd v Worrell (2000) 75 ALJR 312

o executive employee employed under an oral contract of employment for several years. The employee had misappropriated property and workers belonging to the employer company to build his house.

o after this, offered a written fixed term contract, if dismissed before that time and there are no grounds for dismissal, can bring a claim for wrongful dismissal against the employer

o employer terminated but the end of the fixed term, and only became aware of the misconduct after the contract was terminated

o the employee brought a claim for wrongful dismissal against the employer o the employee argued he had no duty to disclose his wrongdoing when carrying

out the fixed term contract o the HCA did not directly address the rule in Bell o said b/c he had breached his duty, the employer had grounds for summary

dismissal and did not have to pay damages

vi) employer’s duty to comply with the work- wages bargain

At common law, the payment of wages is dependent on the performance of work (no work, no wages): Automatic Fire Sprinklers Pty Ltd v Watson. See discussion of industrial action for modifications to this rule.

vii) employer’s duty to provide work

General proposition: an employer is not required to provide an employee with actual work to do.

Doubt was cast on this proposition in:

o This is based on the concepts of job satisfaction, and that the acquisition of skills and experience is important for jobs in the future – Justice Jessup in?? expressed doubt

o obiter in Blackadder v Ramsey Butchering Services Pty Ltd (2002) - but the case was concerning statutory provisions

Some exceptions: where publicity is important, and therefore ongoing performance is critical to their success.

viii) employer’s duty of care

ix) mutual trust and confidence

NB: A new decision completely reversing CBA v Barker was handed down in the HCA. We are

not expected to know the new provisions, but mention if raised in exam (unlikely)

General rule: The term which has been stated in most of the authorities is 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.’: Commonwealth Bank of Australia v Barker (2013) 214 FCR 450, 464.

Cf – UK Cases:

This is a mutual duty, but from early on it was recognised the implied term has greatest significance in relation to the employer - Seminal decision: Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 (to be discussed in the seminar).

o ‘It is true that the implied term adds little to the employee's implied obligations to serve his employer loyally and not to act contrary to his employer's interests. The major importance of the implied duty of trust and confidence lies in its impact on the obligations of the employer.’ Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20, 46 (Lord Steyn) (citations omitted).

o ‘The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited.’ Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20, 46 (Lord Steyn).

o The HoL recognised a breach of the duty could sound in damages

Johnson v Unisys Ltd [2003] 1 AC 518 (to be discussed in the seminar).1 o Johnson exclusion - Only applies during employment relationship, and does not

apply at the termination of the relationship (when the employee is dismissed) o if the employee is dismissed in an unfair manner, cannot claim a breach of this

duty b/c the duty does not apply at the point of dismissal

Eastwood v Magnox Electric plc [2005] 1 AC 503 (to be discussed in the seminar). o ‘Identifying the boundary of the "Johnson exclusion area", as it has been called,

is comparatively straightforward. The statutory code provides remedies for

infringement of the statutory right not to be dismissed unfairly. An employee's

remedy for unfair dismissal, whether actual or constructive, is the remedy

provided by statute. If before his dismissal, whether actual or constructive, an

employee has acquired a cause of action at law, for breach of contract or

otherwise, that cause of action remains unimpaired by his subsequent unfair

dismissal and the statutory rights flowing therefrom. By definition, in law such a

cause of action exists independently of the dismissal.’ Eastwood v Magnox

Electric plc [2005] 1 AC 503, 528 (Lord Nicholls).

o ‘The existence of this boundary line produces other strange results. An employer

may be better off dismissing an employee than suspending him. A statutory claim

for unfair dismissal would be subject to the statutory cap, a common law claim

for unfair suspension would not. The decision of the Court of Appeal in Gogay v

Hertfordshire County Council [2000] IRLR 703 is an example of the latter.

1 Reasoning in Johnson v Unisys Ltd [2003] 1 AC 518 followed in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; New South Wales v Paige (2002) 60 NSWLR 371.

Likewise, the decision in Johnson v Unisys Ltd [2003] 1 AC 518 means that an

employee who is psychologically vulnerable is owed no duty of care in respect of

his dismissal although, depending on the circumstances, he may be owed a duty

of care in respect of his suspension.’ Eastwood v Magnox Electric plc [2005] 1 AC

503, 529 (Lord Nicholls).

Gogay v Hertfordshire County Council [2000] IRLR 703 (to be discussed in the seminar).

d) implied by custom NB: These tend to not be a significant issue re employment contracts

TEST: (Byrne v Australian Airlines)

1) whether the general notoriety of the custom makes it reasonable to assume that the

parties contracted with reference to the custom so that it is therefore reasonable to import

such a term into the contract

2) not essential that the custom be universally accepted, it must be so well known and

acquiesced in that persons making a contract in that situation reasonably can be presumed

to have imported it into their contract

C. Has the term been varied?

TEST

1) Both parties have agreed to alter the contract

2) Consideration has been paid

Significant changes - Where the change is significant, it may be that the old contract is terminated,

and a new one is created. This was the case in Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567:

FACTS:

o letter of offer – included an express term re notice of termination.

Employment could be terminated by the other giving one month’s notice

o change in Mr. Quinn’s duties - GM of the Chia group, appointed to the

boards of two construction companies in the building project, given a

significant amount of additional remuneration

o employer gave one month’s notice termination

o argued he was entitled for a period of reasonable notice, that in his case

was two years

DECISION: There was a new contract and one month’s notice was unreasonable. The

reasonable amount of notice was found to be one year.

D. Is the term of the contract inferior to a term of an award, EA or statutory provision?

General rule: an award, enterprise agreement or statutory provision will override inferior terms and

conditions in the contract of employment. Can impose more favourable terms.

Cases for analogy:

o Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250. -

employer/employee could not agree to contract out of the terms and conditions in the

award

o Regional Express Holdings Ltd v Clarke (2007) 165 IR 251 - employer/employee could not

agree to contract out of the terms and conditions in the enterprise agreement

Award & contract: The terms of an award do not automatically form part of a contract of

employment.

Effect of this – breach of a term of an award or EA gives rise to a statutory remedy, not a

contractual remedy. Therefore if an award/EA is part of a contract, a breach of those terms

will give rise to a statutory remedy????

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 421 (Brennan CJ, Dawson and Toohey JJ):

FACTS:

The employees (appellants) were employed by the company as baggage

handlers at Sydney airport. Were dismissed from their employment for

pilfering.

They claimed their dismissal was in breach of 11A of the Transport Workers

Award 1988 – provided termination should not be harsh, unjust or

unreasonable.

Legislation at time: Industrial Relations Act 1988 Cth

DECISION: The award did not form part of the contract.

Why? The parties can agree to incorporate an award, but in the absence of

an agreement to incorporate the term is not automatically incorporated in

the contract

EA & Contract: rule is the same as above: Soliman v University of Technology, Sydney (2009) 176 IR

183.F. Remedies for a breach

C. Can the person claim damages?

NB: For an example of how these three steps were reasoned in an employment case see Goldman Sachs v

Nikolich

Damages – not only remedy for breach of contract?? What else?

a) Breach Interpret terms objectively - The meaning of the terms of a contractual document is to be

determined by what a reasonable person would have understood them to mean. That, normally,

requires consideration not only of the text, but also of the surrounding circumstances known to the

parties, and the purpose and object of the transaction (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd)

b) Causation one sentence - test

c) Remoteness one sentence – test

NB: If psychiatric damage, careful not just mere distress as this will not result in damages

d) Damages Court will decide amount – use discretion. Usually more generous than statutory remedy so this is

favourable for the client.