Over the last decade, Australian courts have vigorously debated over the existence, formulation, and consequences of the implied term of mutual trust and confidence, in the context of employment contracts. The decision in Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (‘Barker’) has granted some clarification in this area, with the majority confirming that a term of mutual trust and confidence can be implied into all contracts of employment, unless the term would be inconsistent with the express terms of the contract. The decision has created implications for employers who must review the terms of their employment contracts and reconsider their pre-termination processes, and doubt relating to the scope and operation of the term.

Facts:
Mr Barker was employed as an executive manager at Commonwealth Bank of Australia (CBA); he had a considerable period of service with the bank. In 2009, the CBA undertook a nationwide restructure of its corporate financial services unit, causing Mr Barker’s position made redundant. Its redeployment policy was to reallocate employees to a suitable position where possible, however the banks HR manual provided that the policy did not ‘form any part of an employee’s contract of employment’.
Mr Barker was informed that his position had become redundant and he was told that his employment would be dismissed in one month if another position was not found within CBA.
On his notification of redundancy, Mr Barker was told to clear his desk, return his keys and phone and told that he was not to return to work, his access to CBA's email and intranet was also revoked.
The staff members accountable for assisting Mr Barker with redeployment tried to make contact with him via his work email and phone number, which he did not have access to. It was only shortly before Mr Barker's employment was due for termination that the staff