[2]: [38]  On 2 March 2009, Mr Barker was told that his position was to be made redundant and that if he was not redeployed within the Bank his employment would be terminated.

[4] An employer may seek to entice or motivate its employees in the expectation of receiving a bonus payment or promises of fair treatment.

[11] Even if a former employee could establish that they were wrongfully dismissed, there were three further impediments to the available remedies: Employees and their representatives have sought to overcome these impediments in a number of ways: Whether there is an implied contractual duty of mutual trust and confidence had been controversial,[30] and considered but not settled in various decisions of Australian courts including: The Commonwealth Bank's argument was that it was not bound to follow its own policies.

Besanko J held that there was an implied term of mutual trust and confidence in the contract which operated only where a party did not have reasonable and proper cause for his conduct and the conduct was likely to destroy or seriously damage the relationship of trust and confidence,[2]: [323]-[330]  applying the decision in Malik v Bank of Credit and Commerce International SA.

[2]: [351]-[352]  The Court dismissed Mr Barker's claims that the policies were incorporated into his contract and that the Bank had engaged in misleading or deceptive conduct.

The Full Court, by a majority (Jacobson and Lander JJ, Jessup J dissenting) dismissed the appeal, holding that there was an implied term of mutual trust and confidence, as found in Malik v Bank of Credit and Commerce International SA.

[27] Jacobson & Lander JJ disagreed with the trial judge that the term of mutual trust and confidence required the Bank to comply with its policies, instead finding that mutual trust and confidence required the Bank to take positive steps to consult with Mr Barker about alternative positions and to give him the opportunity to apply for them.

I do not believe that the common law has come close to making the employer responsible for emotions of this kind, or to giving legal consequences to the fact that they are not generated in a particular situation.

[37] The grounds of appeal were that the Federal Court : The main arguments of the Commonwealth Bank were that: The main arguments of Mr Barker were that The High Court unanimously allowed the appeal and held that a term of mutual trust and confidence should not be implied by law in employment contracts in Australia.

The present case concerns an implied term in law where broad considerations are in play, which are not at large but are not constrained by a search for what 'the contract actually means'.

In Byrne v Australian Airlines Ltd,[17] McHugh and Gummow JJ emphasised that the "necessity" which will support an implied term in law is demonstrated where, absent the implication, "the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined" or the contract would be "deprived of its substance, seriously undermined or drastically devalued".

[1]: [28]-[29] Kiefel J similarly applied the test of necessity set out in Byrne v Australian Airlines Ltd,[17] by McHugh and Gummow JJ.

[1]: [114] French CJ, Bell & Keane JJ in their joint judgement emphasised that "The common law in Australia must evolve within the limits of judicial power and not trespass into the province of legislative action", subsequently holding that the policy considerations were so complex that it should be left to parliament to determine.

French CJ Bell & Keane JJ noted that the implied term was directed to the relationship between employer and employee rather than the performance of the contract.

"[1]: [107] The immediate impact of the decision is that mutual trust and confidence as an implied contractual term is dead and buried in Australia.