Assistant Pastor of church an “employee” for unfair dismissal claim

I have commented previously on the question of the employment status of members of the clergy, which can be quite complicated. A recent decision of the Fair Work Commission, Solomon Woldeyohannes v Zion Church in Melbourne Australia Inc [2020] FWC 4194 (11 August 2020) holds that an assistant pastor of a small incorporated church was an employee of the church, and was able to commence an action for unfair dismissal.

General principles of employment law

As noted in my previous comment, there is a long history of ministers of religion not being regarded as engaged under a binding contract at all, a number of older cases holding that their relationship with the congregation or the wider denomination was a “spiritual” one and not a legal one. In more recent years the High Court of Australia in its decision in Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95; [2002] HCA 8 has ruled that there is no longer any such “presumption” under Australian law. The question as to whether a minister of religion works under a legally binding contract, and whether that involves a contract of employment or an “independent contractor” relationship, is to be determined on the general principles used by the courts to decide such matters.

Those general principles, unfortunately, are themselves fairly complicated. In effect the courts will first consider whether there is a binding contract between the parties, including in particular an “intention to be legally bound”. Once this is established, then a number of tests are used to determine whether the worker is an employee or an independent contractor: the “control” test; application of a series of criteria or “indicia” spelled out in the High Court decision in Stevens v Brodribb (1986) 160 CLR 16, as supplemented by some of the considerations discussed in more recent cases such as Hollis v Vabu (2001) 207 CLR 21; and in some cases a more recent test asking whether someone is “working in a business of their own”.

The facts of this case

In this case, Mr Woldeyohannes had been ordained as an assistant minister in the church he had been attending for some time, Zion Church in Melbourne Australia Inc, a Christian church with a predominantly Ethiopian congregation, located in the Melbourne suburb of Brooklyn. It is important to note that the church is an incorporated association for the purposes of the Associations Incorporation Reform Act 2012 (Vic).

Deputy President Colman summed up the circumstances as follows:

[10] Mr Woldeyohannes’s evidence was that in 2008, Mr Teklemariam [the senior pastor of the church] told him that he should become a pastor, and that over the next year or so Mr Teklemariam encouraged him to leave his job as a delivery driver and become a full-time pastor of the Church. In April 2009, Mr Woldeyohannes finally agreed. He sold his van, and gave up his delivery work, from which he had been earning about $70,000 a year. Mr Woldeyohannes said that he made an intentional decision to ‘quit one job and commence another,’ and that he was mindful of the substantial financial sacrifice he was making. He said that from this time until he commenced working as a pastor in 2011, he was without income, but served the Church in bible study and occasional preaching.

There was some debate about whether the senior pastor had actually urged Mr Woldeyohannes to leave his previous job, and what was said at a board meeting where his ordination was discussed. But the ordination went ahead in 2011:

[20] Mr Woldeyohannes was ordained as a minister on 24 July 2011. Mr Teklemariam conducted the ceremony. Mr Woldeyohannes read out a covenant, which stated that he pledged to preach and teach the word of God, to watch over himself and the ‘flock’, and that he ‘will not be shepherding as the hired hand, but as a faithful minister keeping the unity of the body of Christ.’ 

There was some attempt later made by the church to rely on this promise “Not to be shepherding as the hired hand” as a pointer to the intentions of the parties as to employment. But to anyone familiar with the parable of the Good Shepherd as told by Jesus in John 10, the reference is to these verses:

 12 He who is a hired hand and not a shepherd, who does not own the sheep, sees the wolf coming and leaves the sheep and flees, and the wolf snatches them and scatters them. 13 He flees because he is a hired hand and cares nothing for the sheep. (ESV)

It seems fairly clear that the promise was not intended to say anything about whether or not a contract of employment was in place! As Colman DP said at [49]: “this was a statement about Mr Woldeyohannes’s approach to ‘shepherding’ and his ministry, not a statement foreswearing any intention to become an employee or to create a legal relationship with the Church”.

The legal conclusion

Without going through all the details, in the end Colman DP concluded that the relationship between Mr Woldeyohannes and the church bore all the marks of a legally binding contract, and concluded that in fact it was a contract of employment. Factors that led to this conclusion were (summed up at para [59]):

  • Mr Woldeyohannes worked as a full-time assistant pastor of the Church for nine years.
  • He was paid a regular and consistent salary.
  • He was granted annual and personal leave.
  • He was back paid annual leave for years where leave had been overlooked.

Colman DP did refer to other cases where a clergyman had been found not to be an employee. One of the cases, Knowles v The Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm 157 was handed down before Ermogenous had ruled against a “presumption” of no contract, and involved “consideration of the ecclesiastical constitution and canons applicable to the Anglican Church in Australia” (at [52]). The other case, Steven Threadgill v Corporation of the Synod of the Diocese of Brisbane [2014] FWC 6277 was also said to involve consideration of “the internal rules of the Anglican Church, which, the Commissioner concluded, rendered the minister’s post in that case discretionary” (at [53]).

As can be seen from these examples, there must still be some doubt about the employment status of clergy in the case of larger organisations such as the Anglican Church or the Roman Catholic Church, where the denominational structures are often not incorporated and decision-making is dispersed. Mr Woldeyohannes’s case was easier, as the church was specifically incorporated under local legislation, and had a clear set of rules for decision making and dispute resolution.

Even given these differences, I have to say that Colman DP’s decision does not explore in any depth the possibility that Mr Woldeyohannes was an independent contractor, rather than an employee. In this connection it seems to have been relatively easier to characterise the relationship as one of employment where Mr Woldeyohannes was clearly under the authority of, and had promised to “submit to the Zion Church, overseer Dr Beeftu, senior pastor Teklemariam and the evangelists, elders, ministers and the whole congregation” (at para [20]). In this circumstances, where an assistant minister has clear obligations of obedience and less independent pastoral discretion, it may be easier to say that they are an employee and not an independent contractor (which I think would be more likely in the case of a senior pastor).

Having ruled that Mr Woldeyohannes was an employee of the church, Colman DP then noted that a further hearing would be required to determine whether or not he was “unfairly dismissed” under s 394 of the Fair Work Act 2009 (Cth), and if so whether an order should be made for his reinstatement.

The impact of this decision is, of course, relatively limited. Decisions of the Fair Work Commission do not provide binding precedent for courts (or even for later decisions of the FWC.) Each case will hinge on its facts to a large degree, and in particular the “governance structures” of the church involved can have a big impact on the outcome (see [53], quoting Ermogenous). But the case provides an interesting example of the fact that, since Ermogenous, the courts and tribunals of Australia do not see “spiritual” duties and contractual obligations as incompatible:

Plainly their role is a religious and spiritual one. But that does not mean that they cannot have a legal relationship with the Church, including one of employment.

Para [53].