Litig8: Serious Misconduct: Bartlett v Australia & New Zealand Banking Group Pty Ltd [2016]

May, 2016

By Claire Limbach, Lawyer

Each month as a part of Mills Oakley’s Litig8, we bring to you snapshots of eight key cases, legislative changes or other legal events. The summaries are not comprehensive and do not constitute legal advice. You should seek professional advice before taking any action based on the content of this email.

Part 1 of the May edition of Litig8

Recent case law has focused on the distinction between an employer’s opinion of what constitutes misconduct versus factual proof of misconduct

This case involves consideration of grounds of termination of an employment contract owing to misconduct.

This trial judge found that the Bank was entitled to terminate Mr Bartlett’s contract summarily because it held the opinion he had engaged in serious misconduct.  The allegations were that Mr Bartlett had leaked confidential information to a journalist.

The case was decided upon the construction of the employment contract specific to Mr Bartlett. There were two particular relevant clauses in the contract;

It was successfully argued that, when reading clause 14.3(b) in conjunction with clause 13, the necessary construction resulted in a requirement that the Bank had to objectively establish that an actual breach occurred.  Essentially, it was deemed that clause 13 acted as a pre-condition to clause 14.3(b). Further, the words ‘in the opinion of ANZ’ noted in clause 14.3(b) referred to the determination of whether the breach was ‘serious’ and not whether a breach above had occurred. ANZ was unable to establish that it was entitled to terminate Mr Bartlett’s employment summarily.

The Court awarded damages of $110,000 plus interest as a consequence of the wrongful termination.

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