Elisha v Vision Australia Limited

Mr Elisha had worked for Vision Australia since 2006, helping vision-impaired clients with software and hardware. In March 2015, while travelling for work, he complained about noise at a hotel after midnight and was moved to another room. The hotel proprietor later said he had been aggressive and intimidating.

When Mr Elisha returned from annual leave, his manager gave him a stand-down letter. It alleged serious misconduct during the hotel incident and required him to attend a meeting. He denied the allegations in writing and at the meeting.

Before the meeting, Mr Elisha's manager had told human resources that she had received earlier reports about aggressive behaviour and had spoken with him over the years. Those assertions shaped the internal view that the hotel complaint was believable.

The earlier claims were not set out in the stand-down letter and were not fairly put to him. The trial judge found that the disciplinary process was a sham and that the decision to terminate was affected by a conclusion about a pattern of aggression that Mr Elisha had no proper opportunity to answer.

The employment contract required Mr Elisha to comply with Vision Australia's policies and procedures. The disciplinary procedure and enterprise agreement described the process the organisation would use. Reading those documents together, the High Court held that the disciplinary procedure formed part of the contract.

That finding turned a flawed internal process into a breach of an express contractual obligation. The Court also rejected a blanket rule that psychiatric injury caused by the manner of dismissal is outside contractual damages. The result depended on this contract, the seriousness of this breach and the injury proved on the facts. It does not mean every flawed dismissal produces psychiatric injury damages.

A fair process does not require an employer to accept the employee's account. It requires a genuine investigation, clear allegations and an open decision after the response has been considered. If new information becomes important, pause and give the employee a chance to answer it.

Employers should also review how contracts refer to policies. A promise to follow a detailed procedure can create contractual rights. If flexibility is intended, the documents should be drafted consistently, but the business should still follow a fair and reasonable process.