| [2020] FWC 4194 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Solomon Woldeyohannes
v
Zion Church in Melbourne Australia Inc
(U2020/3618)
DEPUTY PRESIDENT COLMAN |
MELBOURNE, 11 AUGUST 2020 |
Unfair dismissal application – pastor of a church – jurisdictional objection – whether applicant an employee – whether intention to be legally bound, objectively assessed – jurisdictional objection dismissed
[1] This decision concerns an application by Mr Solomon Woldeyohannes for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). He contends that he was unfairly dismissed from his employment as an assistant pastor with the Zion Church in Melbourne Australia Inc (Church). He seeks reinstatement.
[2] The Church objects to the application on the jurisdictional ground that Mr Woldeyohannes was not an employee.
[3] Section 396 requires that the Commission decide certain matters before it considers the merits of an application, including the question of whether the person was ‘protected from unfair dismissal’ (s 396(b)). To be protected from unfair dismissal, a person must have been an employee who has completed the minimum employment period (s 382). If Mr Woldeyohannes was not an employee of the Church, his application for an unfair dismissal remedy must be dismissed.
[4] The jurisdictional objection that was initially raised by the Church advanced a second ground, namely that the Church was not a ‘national system employer’ as defined in s 14 of the Act, and that it was therefore not subject to the unfair dismissal provisions in Part 3-2 of the Act. At the jurisdictional hearing, the Church withdrew this ground. It was right to do so, as Victoria is a ‘referring state’ for the purposes of the extended definition of ‘national system employer’ and ‘national system employee’ in ss 30D and 30N of the Act.
[5] A further jurisdictional issue should be mentioned briefly. Mr Woldeyohannes filed a submission made by 55 of his parishioner supporters, in which they contended that the decision of the Church board to remove him was invalid, because it was contrary to the Church’s constitution. The supporters maintained that Mr Woldeyohannes is in fact still employed as an assistant pastor of the Church. I explained to Mr Woldeyohannes at the hearing that this argument is in opposition to his contention that he was dismissed from his employment. If his supporters were correct that no valid dismissal occurred, and Mr Woldeyohannes was still employed by the Church, the Commission would have no jurisdiction to hear his unfair dismissal application. Mr Woldeyohannes confirmed that he did not adopt the argument of his supporters on this point.
[6] I heard the jurisdictional objection on 13 July 2020. Mr Zelalem Teklemariam gave evidence for the Church. He has been the senior pastor since 2000 and is chairman of the Church board. Also giving evidence for the Church was Mr Yohannes Hilameskel. Mr Woldeyohannes gave evidence, as did Mrs Aster Tessema.
[7] The Church is an incorporated association for the purposes of the Associations Incorporation Reform Act 2012 (Vic) (Associations Incorporation Act). It is a Christian church with a predominantly Ethiopian congregation. The Church is located in the Melbourne suburb of Brooklyn. It is a not for profit organisation and raises money from tithes and other offerings from its members. These monies are put towards Church purposes, including charitable activities, and payments that are made to pastors.
[8] The Church has a constitution which sets out its ‘vision, responsibility and aim’ (clause 5), defines its membership (clause 6), and regulates the appointment of the Church’s leadership, including the positions of senior pastor, assistant pastor, and board members (clauses 7 and 8). The constitution forms the rules of the association for the purpose of s 48 of the Associations Incorporation Act.
[9] Mr Teklemariam and Mr Woldeyohannes have known one another for many years. Mr Teklemariam has been senior pastor of the Church since 2000. Mr Woldeyohannes was an assistant pastor from 2011 until March 2020.
[10] Mr Woldeyohannes’s evidence was that in 2008, Mr Teklemariam 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.
[11] Mr Teklemariam’s evidence was that in around 2009 he and the other elders formed the view that Mr Woldeyohannes had a calling for ministry, and that they asked him to become an assistant pastor. Mr Teklemariam said that, although he encouraged Mr Woldeyohannes to become ordained and work as a pastor, he did not tell Mr Woldeyohannes to quit his job, and did not offer him employment with the Church.
[12] I accept Mr Woldeyohannes’s evidence that Mr Teklemariam encouraged him to become a pastor, and that Mr Woldeyohannes believed that he would be giving up one job to commence another. Evidently, there is a certain lead time to become an ordained pastor. It was not for several years after leaving his delivery job that Mr Woldeyohannes was ordained. I also accept Mr Teklemariam’s evidence that he did not tell Mr Woldeyohannes to leave his previous job and did not tell Mr Woldeyohannes that he was offering him employment with the Church.
[13] Mr Woldeyohannes’s evidence was that on 10 June 2011, he attended a meeting of the board of the Church, at which there was a discussion about the salary he would receive as a pastor of the Church once he was ordained. Mr Woldeyohannes said that at this meeting, Mr Teklemariam informed the board about his proposal that the Church employ him as a full-time pastor, and board members supported the proposal. He said that Mr Teklemariam explained to the board that Mr Woldeyohannes’s planned ordination had been delayed because of certain conflicts that had occurred within the Church in 2009 and the need to rebuild the congregation. Mr Woldeyohannes said that a motion was passed to increase Mr Teklemariam’s salary, and to commence Mr Woldeyohannes’s salary as soon as he was ordained as assistant pastor.
[14] Mr Woldeyohannes’s evidence was that he recalled Mrs Tessema, a board member, saying that the board should take ‘one step’ in respect of the salaries of Mr Teklemariam and Mr Woldeyohannes, meaning that the budget of the Church should reflect a salary for Mr Woldeyohannes. Mr Woldeyohannes understood from this meeting that he would be paid a salary as the assistant pastor.
[15] Mr Woldeyohannes said that he understood the board’s decision at the June 2011 meeting to pay him a salary to be a verbal offer of employment. He acknowledged that there was no discussion at this meeting, or at any other time, about the amount of his salary. He said that he did not raise this matter because, from his time as a board member from 2004 to 2009, he already knew what Mr Teklemariam received as a salary in his position as the senior pastor.
[16] In her evidence, Mrs Tessema said that, at the meeting in June 2011, the board discussed paying Mr Woldeyohannes a salary but noted the budgetary constraints that existed at that time. She said that the board agreed to pay Mr Woldeyohannes a salary when he became ordained and commenced work as an assistant pastor. No salary figure was mentioned. Mrs Tessema said that Mr Woldeyohannes was present at this meeting. She also said that she could not remember any time when members of the board would expect full time pastors to serve the Church without being paid a salary.
[17] Mrs Tessema attached to her witness statement a financial statement dated 30 June 2011 that contained a line item of ‘employment expenses’, and sub items for ‘wages and salaries’, ‘fringe benefits’, ‘employment leave’ and ‘superannuation’. At this time, Mr Teklemariam was the only pastor. In this regard, there was no evidence of the Church having employed other persons. In its F3 employer response form, the Church stated, in answer to the relevant pro forma question, that it employed three persons. Mr Teklemariam said that this was a reference to himself, Mr Woldeyohannes, and another person, pastor Jonathon, but that the Church had not intended to concede by providing this information that the pastors were employees of the Church. I accept this. However, I find that the entries under ‘employment expenses’ on the 2011 financial statement was a reference to, or at least included, Mr Teklemariam’s pay.
[18] Mr Yohannes Hilameskel gave evidence that he was the Church treasurer in 2011, and that he recalled a three-day board meeting that involved fasting and prayer, at which the board discussed the proposal that Mr Woldeyohannes become an assistant pastor. He said that Mr Woldeyohannes was present for at least one of the meetings, but that financial matters were not discussed in his presence. He said that, contrary to Mr Woldeyohannes’s evidence, he did not recall stating that Mr Woldeyohannes should not suffer financially whilst serving the Church, but that it was correct that, in accordance with scripture, the Church should support pastors by sharing tithes and offerings during their ministry.
[19] I accept the evidence of Mr Woldeyohannes and Mrs Tessema about what occurred at the board meeting in June 2011. Their evidence was detailed and convincing. I consider that Mr Hilameskel gave evidence to the best of his recollection, but his recollection was not as clear as that of Mr Woldeyohannes and Mrs Tessema. He said that he did not recall whether various things were done or said. Similarly, Mr Teklemariam did not recall the question of Mr Woldeyohannes’s salary being discussed at this meeting, and said that, if this matter had been raised, it would only have been the ‘parable of the ox’. This featured prominently in the Church’s submissions. The Bible says, in allegorical reference to the role of a minister, ‘thou shalt not muzzle the ox that treadeth out the corn.’ 1 As I understand it, the meaning is that during a person’s ministry, a pastor should be supported by the Church, grazing, as it were, from the field, which is constituted by the offerings and tithes of congregants.
[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.’ He pledged to ‘submit to the Zion Church, overseer Dr Beeftu, senior pastor Teklemariam and the evangelists, elders, ministers and the whole congregation’.
[21] In his role as an assistant pastor, Mr Woldeyohannes’s task was to ‘feed, protect and visit the flock’, assist the senior pastor, and take over from the senior pastor when he was not available (see clause 7.7 of the constitution). Mr Woldeyohannes also taught bible studies, prepared teachings and assisted with prayer and counselling. He represented the Church on the Executive Committee of the Kingdom Connection Churches of Australia Inc, an umbrella body of Ethiopian churches in Australia. Mr Woldeyohannes was responsible for how he went about his ministry activities and reported to the board once a month.
[22] The Church commenced paying Mr Woldeyohannes a salary as of 1 October 2011. On 10 October 2011, Mr Teklemariam sent a letter to the Commonwealth Bank, on behalf of the Church, stating that on 30 September 2011 the Church had decided that Mr Woldeyohannes was ‘now serving the Church and the Lord in the pastoral role’ and ‘working in the full time bases (sic) so that the Church start pays (sic) him, a salary of $750.00 a fortnight.’ The letter requested the bank to transfer $350 a fortnight into Mr Woldeyohannes’s personal account, and $400 into a fringe benefits account.
[23] Mr Teklemariam’s evidence was that by October 2011, Church finances had improved, and the Church was able to pay Mr Woldeyohannes a salary to support him financially. He said that the Church chose to do this as an ‘act of faith’ because it wished to support Mr Woldeyohannes and provide him with sufficient income to cover his basic living expenses. He said that the payment was unrelated to his hours of work, and that from time to time the salary would increase, but that there was no negotiation with Mr Woldeyohannes about this. Mr Teklemariam said that the salary paid to Mr Woldeyohannes, like the salary that he himself received, was paid out of good faith and gratitude for their labour and service as leaders, and to support them and assist with their living expenses, consistent with the parable of the ox. He said the term ‘salary’ was a label applied by the Church to the payments made to ministers and was not intended to connote employment. He said that, when the Church used the word ‘salary’ in correspondence with the bank in 2011 concerning payments to Mr Woldeyohannes, it was simply using a term that would be familiar to the bank, as scriptural references would not be understood. Mr Teklemariam said that the financial accounts were prepared by accountants, and that although the Church accepted them, the references to employment expenses were, in effect, convenient labels.
[24] Mr Woldeyohannes said that he understood the numerous references to salary to carry their plain meaning, which is one associated with employment. He would work as a pastor for the Church and would receive a salary.
[25] The salaries of Mr Teklemariam and Mr Woldeyohannes were paid continuously. They were never decreased. Occasionally they were increased. Mr Teklemariam said that, when this occurred, there was no negotiation. They would simply be advised of the change. As an example, Mr Teklemariam produced a letter dated 15 July 2019 signed by elders of the Church, addressed to ‘whom it may concern’. In the letter, the elders stated that the salaries of Mr Teklemariam and Mr Woldeyohannes would be increased from 26 July 2019 to reflect a rise in the cost of living. Mr Woldeyohannes’s salary was raised from $2,400 a month to $2,650 a month, and his superannuation payment was also increased. The letter stated that the elders had explained these details to the two pastors and that ‘all of us agreed and signed this document as a confirmation’. The letter is signed by two elders. Below their signatures is the following text: ‘The two full-time ministers who accept the above salary increase decision by the elders signed below.’ Beneath are the signatures of Mr Teklemariam and Mr Woldeyohannes.
[26] Mr Teklemariam said that neither he nor Mr Woldeyohannes had set hours of work, and that ministry is a way of life, not an agreement to work in exchange for money. Mr Woldeyohannes was able to take 20 days of holiday a year and take time off if he was ill and this would not affect his salary. Mr Woldeyohannes said that in fact he did have regular hours, because various services and Church functions took place in accordance with a timetable. There was the regular Sunday church service, as well as set hours for classes on Tuesdays, Wednesdays and Saturdays. He said that his usual hours of work totaled 42 per week. The Church did not dispute this.
[27] On 11 February 2019, the Church provided to Mr Woldeyohannes a letter, addressed to persons whom it may concern. It stated: ‘According to Australian Government Law, Permanent full-time ministers are eligible for annual leave payments. We Zion Church Leaders met on 11 February 2019 and decided to pay the eligible annual leave payment for Pastor Solomon.’ The letter went on to note that Mr Woldeyohannes ‘was not paid his annual leave since January 2015’, and that based on accounting calculations, his ‘yearly annual leave’ is four weeks salary, amounting to $2,400. It further stated that Mr Woldeyohannes was paid $4,800 for the years 2015 and 2016, and that payment was made by cheque dated 22 February 2019. It is not clear whether back payment of leave was made for the years 2017 and 2018.
[28] Mr Teklemariam said that the references to annual leave simply reflected the Church’s recognition, based on scripture, that pastors should have rest on the sabbath and also time off.
[29] From April 2018, the Church leadership had concerns about Mr Woldeyohannes’s behaviour. Mr Teklemariam said that Mr Woldeyohannes showed a ‘lack of submission’, by which he appeared to mean that Mr Woldeyohannes would not carry out his instructions as senior pastor. Mr Teklemariam said that Mr Woldeyohannes accused members of the Church leadership of throwing people out of the Church, and of various ‘wrongdoings’ without providing evidence. Then at a service on Sunday 29 September 2019, at which Mr Teklemariam was officiating, Mr Woldeyohannes entered the church and disrupted the session. According to Mr Teklemariam, Mr Woldeyohannes appeared distressed, was ‘ranting’ in an aggressive way, and cursing the leadership of the Church. Mr Teklemariam said that Mr Woldeyohannes was wearing a suit that was shredded and that he was in an uncontrolled state. He said that some parishioners were frightened and several of the men eventually persuaded Mr Woldeyohannes to leave. Mr Woldeyohannes does not accept the Church’s characterisations of his conduct.
[30] In the course of the following week, the Church leadership wrote to Mr Woldeyohannes, stating that, as a result of the incident on the previous Sunday, and because of concerns for the safety and security of its members, the Church was prohibiting him from entering the church compound for any reason. Mr Woldeyohannes has not returned to the Church since that time. According to the Church, Mr Woldeyohannes has remained absent from Church life.
[31] On 4 March 2020, following various communications and attempts to mediate the differences between the Church and Mr Woldeyohannes, the leadership wrote to Mr Woldeyohannes and stated that he had two weeks to ‘repent’ and present himself without any preconditions, otherwise he would be immediately ‘released from (his) role at the Church’, and that the Church, which had continued paying his salary to that point, would cease to do so.
[32] Mr Woldeyohannes denies that he acted inappropriately at the service on 29 September 2019. He says that he has many supporters among the membership of the Church, and that the board has acted against the wishes of the Church membership. He submitted a large number of petitions from parishioners affirming their support for him.
[33] Mr Teklemariam said that the relationship between the Church and ministers (senior pastors and pastors) was one of mutual support and service to the community, not one of mutual obligation, and that pastors’ salaries are paid by the Church on a voluntary basis. Mr Woldeyohannes acknowledged that the role of an assistant pastor involves a relationship of mutual support with the Church. However, he said that there was also an employment relationship between him and the Church, and between Mr Teklemariam and the Church.
[34] I accept the evidence of both witnesses about their respective understandings of the relationship between pastors and the Church.
[35] The Church advanced the following submissions in support of its contention that Mr Woldeyohannes was not its employee:
• There was no contract of employment between the Church and Mr Woldeyohannes, as essential elements of a contract at common law were absent. There was no offer and acceptance, because the position of assistant pastor was not negotiated, nor were any terms agreed upon. There was neither a written nor an unwritten contract between the Church and Mr Woldeyohannes.
• There was no intention to create legal relations. The relationship between the parties was spiritual and voluntary and did not impose legally binding obligations on the parties. Mr Woldeyohannes took a religious vow to undertake the role of pastor, in the course of which he affirmed that he was not a ‘hired hand’. He also told Mr Teklemariam that he did not expect anything, including money, in exchange for fulfilling his calling.
• Mr Woldeyohannes’s salary was paid at the sole discretion of the Church as an act of good will, not because of a legal obligation. No sum was ever negotiated or agreed with Mr Woldeyohannes. It was simply confirmed with him from time to time. The amount was determined by reference to the cost of living and was dependent on the Church’s financial position. The word ‘salary’ was not used in any technical sense and simply described the discretionary payments that were made to him.
• At the commencement of his engagement as an assistant pastor, Mr Woldeyohannes was not consulted, or even told, the amount of his salary, and no salary was paid at all for a period of four months.
• Mr Woldeyohannes did not have a legal obligation to perform work. He had no specific hours of work and the salary was not dependent on the time he spent working for the Church. He had four weeks holiday a year. He was supported by the Church when he was ill.
• If there was any contract between Mr Woldeyohannes and the church, it was not a contract of employment.
[36] The submissions of Mr Woldeyohannes in support of his position that he was an employee of the Church were as follows:
• The Church, through Mr Teklemariam, strongly encouraged him to leave his delivery job and become a full-time assistant pastor, thereby effectively recruiting him to a paid position within the Church.
• There was an unwritten contract of employment between him and the Church, pursuant to which he was employed as a full-time pastor. In exchange for the salary that the Church paid him, he performed the role of full-time assistant pastor, undertaking the duties set out in the constitution of the Church and those assigned to him by the senior pastor from time to time.
• His employment by the Church was the culmination of a long process of recruitment, negotiation and confirmation. The same process was used to employ Mr Teklemariam as the senior pastor in 2000. Mr Woldeyohannes worked continuously in his role of assistant pastor until 18 March 2020, when he was dismissed.
• Although he was not told what his salary would be upon ordination and did not start to receive his salary for some months, from October 2011 he was paid regularly and consistently in exchange for the work he performed as an assistant pastor. In various correspondence, the Church confirmed that he was a full-time pastor, and also confirmed increases in his salary from time to time.
• The Church granted him annual leave and even agreed to backpay his annual leave entitlements for preceding years. It also paid superannuation on his salary and opened a fringe benefits account with the bank, in further recognition of the fact that he was an employee.
• Mr Woldeyohannes never asked for a written contract of employment to be prepared, because he had faith that the board would honour its verbal commitment to employ him as a full-time assistant pastor on the agreed terms.
• Although there was a gap between his ordination and the commencement of his employment, Mr Woldeyohannes was content to wait, trusting that the Church would commence paying his salary soon.
[37] The question for determination in this matter is whether there was a contract of employment between the Church and Mr Woldeyohannes.
[38] I agree with the Church that, at the time of Mr Woldeyohannes’s ordination in July 2011, the necessary elements of a contract of employment were absent. Although the Church had told Mr Woldeyohannes at the board meeting in June of that year that he would receive a salary, it had not told Mr Woldeyohannes what this salary would be. The fact that Mr Woldeyohannes was aware of Mr Teklemariam’s salary provided no objective basis for Mr Woldeyohannes to believe that he would receive the same salary, because Mr Teklemariam was a senior pastor, and Mr Woldeyohannes was to be an assistant pastor. Nor does the evidence disclose that there was any logical basis to conclude that the salary of an assistant pastor would necessarily be set at any particular percentage of a senior pastor’s salary.
[39] However, in October 2011, the Church began to pay Mr Woldeyohannes a fortnightly salary of $750. It was apportioned to personal and fringe benefits accounts. It was certain. It was paid regularly and continuously. Mr Woldeyohannes was engaged as a full-time assistant pastor. He performed a range of duties in this role, as set out in the constitution and as directed by Mr Teklemariam. There were weekly duties in the Church calendar to which Mr Woldeyohannes attended. He was afforded four weeks holiday. He had access to personal leave if he was ill. These things were clear as between Mr Woldeyohannes, Mr Teklemariam and the Church. Although Mr Woldeyohannes had been working as an assistant pastor for several months before his salary commenced, he was expecting to receive a salary, and once he did begin to receive it, it remained constant. By continuing to work as an assistant pastor from October 2011, Mr Woldeyohannes agreed to work as an assistant pastor of the Church in exchange for the salary it paid him and on the other terms referred to above.
[40] Then there is the question of whether the parties intended to create legal relations. Since the decision of the High Court in Ermogenous v Greek Orthodox Community of SA Inc, 2 it has been clear that the common law of Australia does not recognise any presumption that relationships between religious bodies and their ministers are not intended to create legal obligations. Whether the parties to a religious relationship intended to create legal relations is to be assessed objectively in light of all the evidence, like any other case. I will conduct the analysis in the case accordingly.
[41] The Church emphasised the differences between the facts of the present case and those in Ermogenous, where the respondent was not a church, but an association concerned with both religious and cultural activities. I agree that the facts of the present case differ from those in Ermogenous in a number of respects. However, the High Court’s reasoning remains centrally relevant.
[42] In their joint judgment, Gaudron, McHugh, Hayne and Callinan JJ said that it is of the very essence of a contract that there be a voluntary assumption of a legally enforceable duty and that this required that there be identifiable parties, certain terms, and, unless the arrangement is made under deed, real consideration. 3 Their Honours noted however that the circumstances may show that the parties did not intend their agreement to be legally enforceable and that in considering whether this is so a court may take into account ‘the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances’.4 They continued:
“Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.” 5
[43] I accept the evidence of Mr Teklemariam that he did not consider either himself or Mr Woldeyohannes to be an employee of the Church. But it is not the subjective intentions or understandings of the parties that determine the question of whether there was an intention to create legal relations, but an objective assessment of what was said and done. In my opinion, an objective assessment of the evidence in this case leads to a conclusion that there was an intention to create legal relations.
[44] Mr Woldeyohannes was told at the board meeting in June 2011 that he would be paid a salary as assistant pastor. From October 2011, he was continuously paid a consistent salary, which was increased, with his assent, from time to time. The Church regarded Mr Woldeyohannes as its full-time pastor. In 2011, the Church wrote to his bank to set up an account and confirm standing transfers from the Church account. Mr Woldeyohannes’s role was to perform the duties of an assistant pastor set out in the constitution and work as instructed by the senior pastor. Mr Woldeyohannes worked some 42 hours each week.
[45] I accept the evidence of Mr Teklemariam that the salary paid to Mr Woldeyohannes was subject to the Church’s finances, which were dependent on the tithes and donations of the congregation. However, this is no different in principle to any employment relationship. An employer can only pay wages if it has the money to do so.
[46] The Church contended that the nature of this relationship was spiritual, not physical, that it was one of mutual support and faith, not legal or financial obligation. I accept that there was a spiritual and faith-based relationship between Mr Woldeyohannes and the Church. But that does not preclude the existence of a contractual relationship. There is no reason why there cannot be two dimensions to a relationship, or simply two kinds of relationship. I accept the Church’s contention that a pastor is the good shepherd to the flock, and is not motivated by ‘financial gain’, but by ‘pure motives’. However, an expectation of receiving a basic salary in exchange for full time work could not in my view be described as the pursuit of ‘financial gain’, nor does it reflect an impure motive.
[47] I accept that the reason Mr Woldeyohannes became an assistant pastor was because of his calling. But that does not suggest the absence of an intention to create legal relations. One can have spiritual motivations as well as secular intentions. The Church itself is a spiritual organisation, but it engages with the legal world in many different ways. Mr Woldeyohannes was drawn to the Church for spiritual reasons but, as he said in his evidence, he served the Church both physically and spiritually.
[48] The Church contended that the fact that salary levels were not negotiated indicates that the parties did not intend to create legal obligations. I reject this contention. Many salaries are unnegotiated. Mr Woldeyohannes agreed to work as a full-time pastor and accepted the amount he was paid for his work. The Church also sought Mr Woldeyohannes’s written confirmation of the salary increases that were made from time to time.
[49] Mr Woldeyohannes took an oath that he would not be ‘shepherding as the hired hand, but as a faithful minister keeping the unity of the body of Christ’. But in my view, 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. Similarly, Mr Woldeyohanness’s statement to Mr Teklemariam in 2011 to the effect that he did not expect anything upon his ordination as a pastor does not in my view point to a conclusion that there was no intention to create legal relations. It is not clear what the statement actually meant. It might have referred to Mr Woldeyohannes having no expectation of any particular level of salary. It might have meant that he was not becoming a pastor ‘for the money’. But many prospective employees might say such things. Further, at that time, it might have yet transpired that Mr Woldeyohannes would become a pastor with a more occasional role at the Church, preaching or helping out from time to time. What in fact occurred was that he became a full-time assistant pastor, undertaking substantial work for the Church on an ongoing basis, and receiving a regular salary.
[50] The fact that the Church granted Mr Woldeyohannes paid annual and sick leave also supports a conclusion that it considered itself to be his employer. In particular, the decision of the Church to make back payment of annual leave entitlements in respect of previous years is indicative of an understanding on the part of the Church that it owed legal obligations to Mr Woldeyohannes as his employer. The letter confirming the back payment states that Mr Woldeyohannes is ‘eligible’ for such leave, rather than ‘entitled’ to it, but this is not a distinction of substance. The letter refers to legal requirements, calculates what the relevant amount should be, and confirms payment to Mr Woldeyohannes in those terms, in accordance with ‘Australian government law’.
[51] The Church relied on the decision of the New South Wales Industrial Relations Commission in Knowles v The Anglican Property Trust, Diocese of Bathurst 6 (Knowles), which concluded that the Commission did not have jurisdiction to deal with an unfair dismissal application brought by a minister of the Anglican Church. Wright J considered the English and Australian authorities and concluded that the relationship between the minister and the respondent was not based on contract. His Honour stated:
“The materials clearly show that the relationship was a religious one; to paraphrase the words of Priestley JA in Scandrett, a consensual compact to which the parties were bound by their shared faith based on spiritual and religious ideas - not based on a common law contract.”
[52] However, Knowles, which was decided before Ermogenous, involved consideration of the ecclesiastical constitution and canons applicable to the Anglican Church in Australia. The case turned on its facts. Moreover, a consensual compact to which the parties are bound by their shared faith does not preclude the concurrent existence of a common law contract. There might be a religious compact as well as a legal one. In another case cited by the Church in its submissions, Commissioner Booth adopted Wright J’s reasoning in upholding a jurisdictional objection to an unfair dismissal in Steven Threadgill v Corporation of the Synod of the Diocese of Brisbane 7:
“[23] Rev Threadgill’s role was one within the church proper, primarily or entirely religious in character, as affirmed by the relief sought. His post was under the archbishop’s licence, which (subject to the canons) is discretionary. His case is materially different in those respects from Ermogenous and Bellia but cannot be materially distinguished from Knowles.”
[53] Here one can see again the relevance of the internal rules of the Anglican Church, which, the Commissioner concluded, rendered the minister’s post in that case discretionary. The structures of church governance may be very relevant to ascertaining whether there is an intention to create legal relations. 8 But there is nothing in the constitution of the Church in this matter that indicates that pastors cannot or will not be employees of the Church. 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. Further, contrary to the submissions of the Church, the constitution does in fact envisage dispute resolution outside the structures of the Church. Clause 10.7.10 states that if the mediation process outlined in the clause does not result in the resolution of a dispute, the parties may seek to resolve it in accordance with the Associations Incorporation Act ‘or otherwise at law’.
[54] The Church contended that no intention to be legally bound was ever expressed by the parties, and pointed to the observation in the joint judgment in Ermogenous that, in ascertaining whether there is an intention to create legal relations, one does not embark on a search for the ‘uncommunicated’ intention. 9 But the Court was not suggesting that there must be an express articulation of an intention to create legal relations. It was emphasising that the inquiry into whether there was such an intention is an objective one and is not concerned with the unexpressed state of mind - the ‘uncommunicated subjective motives or intentions of the parties’.
[55] The Church said that Mr Woldeyohannes’s salary did not vary depending on specific hours worked. But that is no different from the circumstances of many salaried employees. The Church also said that there was no certainty of hours of work. However, Mr Woldeyohannes’s evidence, which I accept, was that he worked 42 hours a week and had certain regularly-scheduled duties, and the Church agrees that Mr Woldeyohannes worked as a full-time assistant pastor. The Church also said that it never expected a dispute with Mr Woldeyohannes about his role to be determined outside the Church. But clause 10.7.10 of the constitution contemplates disputes being so determined.
[56] Whether a contract of employment exists is to be considered objectively based on all of the available evidence. In the present case, 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. There was in my view a work for wages agreement. If it were not for the religious nature of his role, it is very difficult to see how there could have been any question at all that Mr Woldeyohannes was an employee of the Church. It has been clear since Ermogenous that the religious character of a relationship does not create any presumption against an intention to create legal relations, and that it is simply to be analysed objectively, like any other relationship.
[57] An objective analysis of the circumstances in this case leads me to conclude that there was a contract of employment between Mr Woldeyohannes and the Church. Mr Woldeyohannes was a person ‘protected from unfair dismissal’. The jurisdictional objection to Mr Woldeyohannes’s unfair dismissal application is therefore dismissed.
[58] Mr Woldeyohannes’s unfair dismissal application will now proceed to the consideration of whether his dismissal was unfair and, if so, what if any remedy should be ordered. In the latter regard, Mr Woldeyohannes’s application seeks orders that he be reinstated, and that he and his wife be allowed to rejoin the congregation and the church community. I make some brief remarks about the question of remedy in this case.
[59] First, if the dismissal is found to have been unfair, the Commission would need to consider whether an order for reinstatement would be appropriate in all the circumstances.
[60] Secondly, the Commission’s power is confined to the remedies in the Act. It does not have power to make orders concerning the participation of Mr Woldeyohannes and his wife in the broader church community.
[61] Thirdly, in cases where reinstatement is inappropriate, the Act allows the Commission to order compensation, subject to the requirements of s 392 of the Act. However, Mr Woldeyohannes indicates in his application that he does not seek compensation, because he wishes only to return to his work as an assistant pastor.
[62] Finally, if Mr Woldeyohannes does not return to the Church in some way, he and his supporters in the congregation may remain aggrieved. In light of these matters, the parties may wish to renew their efforts to seek an agreed resolution to the differences between them.
DEPUTY PRESIDENT
Appearances:
T. Duthie of counsel for Zion Church in Melbourne Australia Inc
E. Tesema for Mr Woldeyohannes
Hearing details:
2020
Melbourne
13 July
Printed by authority of the Commonwealth Government Printer
<PR721706>
1 1 Timothy 5:17 – 18 (King James version)
2 (2001) 209 CLR 95; [2002] HCA 8
3 At [24]
4 At [25]
5 At [25]
6 [1999] NSWIRComm 157
8 See Ermogenous, above, at [7]
9 Ermogenous, above, at [25]