NSWCA: Voluntary Administrator Lawful in Terminating Rabbi’s Employment

In a recent matter before the New South Wales Court of Appeal, the court was required to determine whether the Voluntary Administrator of the South Head Synagogue acted lawfully in terminating the employment of Chief Rabbi Benzion Milecki. In doing so, they were required to consider whether Orthodox Jewish Law (Halakah) could be incorporated into Australian Law, thus meaning that the Rabbi’s appointment was for life.

The case ensued after the Synagogue was placed into administration in 2017, following which the administrator immediately terminated the Rabbi’s employment contract and later prohibited him from attending the synagogue.

Rabbi Milecki consequently brought proceedings against the administrators, claiming that Hazakah (life tenure) was a term of the contract, and that the purported termination of his employment was not permitted.

At first instance, the termination of Rabbi Milecki’s employment was found to be unlawful, with Justice Bereton concluding that Hazakah was incorporated, or alternatively implied, as a term of the contract. However, on appeal, the court unanimously found the administrator was acting within the law by terminating the contract.

In finding against the Rabbi, the court held 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 than in accordance with the halachic or Orthodox Jewish legal principle of Hazakah.”

The appeal judges ruled that Halakah could apply to congregation but not to the company. Accordingly, as Australian law was found to apply, in which all employees are terminated when a company is placed into administration, Rabi Milecki’s termination was ultimately deemed lawful. He was subsequently ordered to pay the administrators costs.

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