Author
Andrew Gray  
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Murray Kellock  
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Sydney
Andrew Gray  

Perth
Robert Lilburne  

Canberra
Ian Johnson  

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A choirmaster’s employment was terminated as a result of allegations of sexual abuse. As a result he brought proceedings in the Supreme Court of NSW arguing wrongful dismissal and that his employer had breached his employment contract. The breach concerned implied terms to act in good faith and not conduct itself “in a manner likely to destroy or seriously damage the relationship of confidence and trust between it and the employee”.

In a significant decision in the context of Australian employment law, the court held that the employer had breached these implied terms by its conduct leading up to the employee’s termination of employment. The court found the employer was entitled to conclude that the employee posed an unacceptable risk of harm to children (and to terminate his employment on that basis). However the breach stemmed from the employer interviewing a complainant by telephone, rather than in person. The court also held that the employee had been wrongfully dismissed by making a payment in lieu of notice when this was not authorised by the contract. However, the court then held that the employee had suffered no losses as a result of these breaches and, consequently, no damages were awarded.

Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2007] NSWSC 104 (19 February 2007)