A landmark matter in employment law It was a landmark occasion for Arnold Thomas & Becker Lawyers on 16 October, with our lawyer Nick Korkliniewski instructing in the High Court of Australia in the matter of Elisha v Vision Australia Limited. “This matter is significant as it has given rise to several important questions and issues that affect employers and employees across the nation, including the duty owed to employees during termination processes, and whether employees can seek compensation entitlements for psychological injury resulting from the termination process,” said Mr Korkliniewski. What is the matter of Elisha v Vision Australia Limited? Mr Adam Elisha (“Mr Elisha”) commenced employment with Vision Australia Ltd (“Vision”) in 2006. However, allegations were made against Mr Elisha in relation to his conduct on a work trip, where Mr Elisha was accused of treating a member of the hotel staff, in an aggressive and intimidating manner, amounting to a serious breach of the companies’ values. In or around, 5 May 2015, Vision became aware of the Incident and began an investigation into the matter by conducting a number of interviews with all relevant parties besides Mr Elisha. On 19 May 2015, Mr Elisha was stood down and on 26 May 2015 he was invited to a meeting to respond to the complaints made against him in relation to the Incident. Mr Elisha’s employment was subsequently terminated on 29 May 2015, for serious misconduct. In August 2020, Mr Elisha commenced proceedings against his employer, alleging psychiatric injury resulting from his employer’s handling of his termination. Initially, the Supreme Court of Victoria found that Vision Australia had breached its own contractual policies during the investigation into the allegations against Mr Elisha, which the court deemed biased and inadequate. As a result, Justice O’Meara awarded Mr Elisha $1,442,404.50 in damages for breach of contract. However, on appeal in November 2023, the Court of Appeal upheld the finding that Vision Australia’s policies were indeed binding contractual obligations. It concurred that Vision’s failure to adhere to these policies constituted a breach. Nevertheless, the court ruled that the damages awarded for psychiatric injury were too remote and not recoverable under common law principles or in contract, particularly referencing established case law that limits damages for psychiatric injury in breach of contract cases. Additionally, the Court of Appeal determined that Vision did not owe Mr Elisha a duty of care regarding the termination process. This duty is not recognised under current common law. Mr Elisha was subsequently granted special leave to appeal to the High Court of Australia and the matter was heard by the Full Court in Canberra on 16 October 2024. “This case is truly groundbreaking, as it has been a decades-long process and we’ve seen it litigated all the way to the High Court of Australia,” said Mr Korkliniewski. What happens next? The High Court will now address and determine two issues: whether the Court of Appeal erred in concluding that damages for psychiatric injury were not recoverable for breach of contract and whether it was incorrect in finding that Vision did not owe a duty of care to Mr Elisha during the termination process. Judgement has been reserved by the High Court and Arnold Thomas & Becker is hoping for a decision by early 2025. Matthew Fitzgerald, Principal and practice manager of Arnold Thomas & Becker’s Richmond office, said:“We now await the result of this ruling, but regardless of the outcome, we are proud of the fierce dedication and determination that our team has demonstrated in pursuing this matter all the way to the High Court for our client.” Contact us Arnold Thomas & Becker is a group of fiercely dedicated legal experts who fight for the rights of injured people across Victoria. We offer a free, no-obligation assessment of your claim from down to earth, friendly and approachable lawyers. Call us today on 1300 333 300 or send us a message at [email protected]