28 August 2020
Serving God and being an employee are not mutually exclusive
Churches and religious institutions, a reminder: your ministers may also be employees in the eyes of the law.
Recently, a former associate pastor, Solomon Woldeyohannes, commenced unfair dismissal proceedings against the Zion Church in Melbourne Australia Inc (Church).
Mr Woldeyohannes allegedly disrupted a service with aggressive ranting and cursing, in an uncontrolled state, wearing a suit that appeared shredded, frightening some parishioners. After giving him two weeks to repent and present himself without any preconditions, the Church released the minister from his role.
While the Commission is yet to consider whether the dismissal was unfair, the associate pastor has won the first argument: he has proved he was an employee.
Not all Australian workers are protected by the Fair Work Act’s unfair dismissal laws. For example, genuine independent contractors, volunteers, and state government employees in some states (such as NSW), are not protected. Though, they may have alternative avenues, depending on the circumstances.
The Church argued that Mr Woldeyohannes was not an ‘employee’ and therefore could not bring an unfair dismissal claim. The relationship was said to be spiritual and voluntary in nature; a religious vow without legal obligations. There was no written contract and no negotiation of salary. And while they had paid the pastor, this was at the Church’s discretion as an act of goodwill. Obligations were said to be based in the ‘parable of the ox’, not at common law.
While there was no written contract of employment, the Commission considered other factors that weighed in favour of an employment relationship: The Church paid the pastor a regular, fortnightly payment. While only $750 per fortnight split across a personal account and a fringe benefits account, the Church referred to this to its bank as a ‘salary’. He was regularly engaged to work for 42 hours per week, with ongoing responsibilities to ‘feed, protect and visit the flock’. He was afforded four weeks’ holidays each year, including a back-payment which the church referred to as ‘annual leave’. Mr Woldeyohannes could also take paid personal leave when ill.
Another key consideration in determining whether an employment contract exists is whether there was intention to create legal relations. Importantly, there is no presumption that, just because the relationship is religious, there won’t have also been an intention to create legal relations. Whether religious bodies and their ministers intend to create legal relations will be assessed objectively, in light of all of the evidence. Uncommunicated subjective motives of the parties don’t count.
That means that, viewing the evidence, the Court or Commission will decide whether a reasonable person in the parties’ shoes would have decided that there was an intention for the pastor to be an employee, as opposed to something else.
In this case, the associate pastor was found to be an employee. In other cases, the answer may differ.
Churches and religious institutions are unique, as workplaces. The religious character and the common foundation of serving a higher power can bind people to a cause and stoke a passion that most other organisations could only dream of.
But, the faith-based nature of a role does not mean it won’t be considered by the law to also be one of employment. And if a worker is properly categorised as an employee, they must receive minimum entitlements including under the National Employment Standards.
Author: Ryan Murphy
Contributing partner: Darren Gardner
 Solomon Woldeyohannes v Zion Church in Melbourne Australia Inc  FWC 4194.
 1 Timothy 5:17-18, where the bible says in allegorical reference to the role of a minister, “Thou shalt not muzzle the ox that treadeth out the corn. And, The labourer is worthy of his reward.”
 Ermogenous v Greek Orthodox Community of SA Inc  HCA 8; 209 CLR 95.
 See, for example, Steven Threadgill v Corporation of the Synod of the Diocese of Brisbane  FWC 6277.