Elkerton and Willcocks (in their capacity as Administrators of South Head and District Synagogue) (Sydney) (In liq) v Milecki  NSWCA 141
Religion, whilst having a strong influence on society, may have no place in the law of contract. The Australian Constitution precludes the Commonwealth from creating laws that establish religion, impose any religious observance or prohibit the free exercise of religion. However, religious terms may be included into a contract if those terms are clear and certain and sufficiently incorporate the religious principles to be observed.
In 1985, Rabbi Milecki, the respondent, was appointed as Chief Rabbi of the South Head & District Synagogue. His employment contract provided that “the relationship between the Rabbi and the congregation shall be defined in accordance with Halacha.” An aspect of Halacha (Orthodox Jewish Law) provides that a Rabbi’s appointment is for life and cannot be terminated except by agreement or pursuant to a decision of a Beth Din. This is referred to as Hazakah.
When Milecki’s contract was terminated, he did not accept that there had been valid termination. Elkerton and Willcocks commenced proceedings to have the dispute between the parties resolved.
The primary judge found in favour of Milecki and held that the contract between the parties gave Milecki life tenure by way of Hazakah. Accordingly, the judge found that the Synagogue was not entitled to terminate Milecki’s employment in the absence of finding a Din Torah that there were grounds for termination. The Synagogue appealed this decision.
The New South Wales Court of Appeal set aside the orders made by the primary judge and made a Declaration that it was “not a term of the respondent’s contract of engagement with the second appellant that his appointment as Rabbi could not be terminated otherwise in accordance with the Halachic or Orthodox Jewish legal principle of Hazakah.” The term was found to not be implied or incorporated into the contract.
The Court of Appeal considered both the clause but found that it made no mention of Hazakah and had no certainty or clarity as to the provisions of Halacha that were intended to be incorporated into the contract. There was also no evidence that contracts between Rabbis and their congregations generally provided the Rabbis have life tenure. As a result, the term had not been incorporated effectively and could not be enforced by the Court.
For a religious term to be effectively incorporated into a contract, that term must:
- Be clear and certain, and
- Effectively include the religious provisions to be incorporated.
This case also reiterated that if your employment contract does not expressly provide a duration of employment or does not specify how your employment may be terminated, it is terminable upon reasonable notice.
This ruling seems to step away from the idea that religion should be personal and have no recognition by the law, and instead, support the idea that religion, like other educational and charitable institutions, should at once be supported and limited by the law.