When Losing Access to Your Own Email Decides Your Future

Home › Case Studies › Case Law Library › Employment Law › Commonwealth Bank of Australia v Barker [2014] HCA 32

Published: 11 November 2025 | Reviewed: 5 December 2025
(3-minute read)

How silence in a contract left a long-serving executive with no legal right to trust.

An employee of nearly 30 years was told he might be redeployed, then had his email and phone access cut off, leaving him unable to apply for the very roles he was told to pursue. And the law said he had no contractual right to be treated with the trust he expected.

The Structural Risk Exposed in the Judgment

This case is not about redundancy. It is about what happens when people assume that fairness is built into a contract, only to find the law does not imply what they hoped.

Stephen Barker worked for the Commonwealth Bank of Australia for almost three decades. During restructuring, he was informed redeployment was possible. But shortly after, his access to internal systems was terminated, the same systems he needed to search for roles and respond to HR.

Barker argued that his employment contract contained an implied duty of mutual trust and confidence. Such a duty, recognised in United Kingdom employment law, requires employers not to act in a manner likely to destroy the relationship.

The Federal Court accepted this term. The Full Federal Court, by majority, agreed.

But the High Court did not.

The High Court held that Australian employment contracts do not contain a general implied duty of mutual trust and confidence. Courts may imply terms only when they are necessary to give business efficacy to the contract, not merely reasonable or fair. Because employment relationships in Australia are already heavily regulated by statute, including the Fair Work Act, workplace protections, and anti-discrimination laws, the High Court found no necessity for the implied term.

The result: even deeply unfair conduct does not automatically breach a contract unless the contract itself, or a statute, says so.

Why This Matters for Australians Today

The lesson in Barker is not about redundancy processes; it is the structural gap between expectations and enforceable rights.

Three realities emerge.

Fairness is not implied.
Unless a right is written, incorporated by policy, or provided by statute, the courts will not read it in simply because it feels appropriate.

Communication failures have legal consequences.
Once access disappeared, Barker lost the practical ability to protect his own position.

Contracts remain the primary source of rights.
Human expectations do not override wording, and courts will not expand obligations beyond what is strictly necessary.

In a workplace world shaped by restructures, digital systems, hybrid arrangements, and automated processes, Barker is a warning: trust must be expressed in structure, not inferred from relationship.

What Went Wrong Structurally

The risk arose because Barker’s procedural protections were not documented. He relied on assumptions about fairness, transparency, and communication that the contract did not contain.

The Bank could lawfully restructure.
It could lawfully reassign access.
And because no implied duty existed, its conduct did not breach the contract.

The dispute did not arise from misconduct. It arose from a structural silence.

When processes, communication, and obligations are not built into the framework, they do not exist in law.

The Universal Lesson

If the contract or policy does not spell out the protections you expect, the law will not create them for you.

This is the message Barker delivers to employers, executives, and employees alike: fairness must be deliberate, procedural, and documented. It cannot be assumed and it cannot be retrofitted.

The Structural Fix: Cost Safety through One-Path Funding

The gap that trapped Barker has a direct analogue in legal disputes: when clients assume protection that the structure does not guarantee.

Clean Law’s One-Path Funding model exists to eliminate these assumptions.

Under One-Path Funding:

• clients fund only one legal path at a time

• no blended role can expand work invisibly

• costs, timing, and scope stay aligned to documented approval

• escrow ensures no step begins without written authority

• oversight remains separate from courtroom advocacy

In Barker, the dispute grew because no structural mechanism preserved communication, expectation, or fairness. In legal disputes, One-Path Funding ensures these guardrails exist from the first step. Protection is built in, not hoped for.

Structure replaces assumption.
Visibility replaces reliance.
Authority remains with the client.

Reflection: Trust Needs Form, Not Assumption

The High Court’s decision in Barker preserved judicial restraint, but it also sent a broader message: trust is not implied, it is created by systems.

For employment relationships, that system is the documented contract and policies.

For legal matters, it is the model itself: two independent lanes, escrow-controlled authority, and transparent oversight.

Fairness should not depend on good intentions. It should depend on a process that both sides can see.

See how One-Path Funding keeps every step controlled, visible, and aligned with your authority.

If you are facing a dispute and want structural protection from the start:
Request a Confidential Call

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.