Losing My Religion
On 27 June 2018 the Court of Appeal of the Supreme Court of New South Wales handed down a decision in relation to an Orthodox Rabbi’s employment contract that purportedly granted him “life tenure”. The Court upheld an appeal against a 2017 judgment that Orthodox Jewish law guaranteed the Rabbi’s life tenure “by implication if not by incorporation” as an element of his employment contract.
Rabbi Benzion Milecki claimed that his 32-year employment with the South Head & District Synagogue (In Liquidation) could not be terminated otherwise than in accordance with Orthodox Jewish law, following the decision of appointed Administrators to dismiss the Rabbi under Australian law in April 2017. In the first instance decision of the Supreme Court, Brereton J considered that relevant clauses of the Rabbi’s 1999 employment contract with the Synagogue sufficiently identified the aspects of Halacha (Orthodox Jewish law) that were to intended to be incorporated. In particular His Honour relied on expert evidence in finding that the principles of Hazakahwere incorporated as a governing law, meaning that the Rabbi’s tenure was for life and could only be terminated by agreement or pursuant to a decision of a Beth Din (Rabbinical Court).
In the Court of Appeal decision, Meagher JA (with whom Bathurst CJ and Macfarlan JA agreed) upheld the challenges of the Synagogue, finding no evidence of a custom in Australia that agreements between
Orthodox Rabbis and their congregations grant the Rabbi life tenure on the basis of Hazakah. Consequently, there was no sound basis for implying such a term from custom or usage and this challenge was upheld.
Further, Meagher JA found that in order for the subject matter of “divine” rules or principles to be incorporated in an agreement, they must be sufficiently articulated to enable them to be identified and effectively incorporated. His Honour was not satisfied that the Rabbi had established with sufficient certainty the subject matter of the principles to be incorporated in the agreement. The decision noted that it was not made clearor otherwise obvioushow, in relation to a code of law that regulates all aspects of “relations between mankind”, a distinction is to be drawn between laws and principles which provide definition to the “relationship between the Rabbi and the congregation” and those which do not.
The decision of the Court of Appeal makes clear that foreign or religious laws will only be capable of incorporation into an Australian employment contract by the use of clear and precise terms.