In Solomon Woldeyohannes v Zion Church in Melbourne Australia Inc  FWC 4194, a relationship breakdown occurred between the Zion Church in Melbourne (“the church”) and one of its pastors, Solomon Woldeyohannes (“the applicant”). As a result, a claim for unfair dismissal under the Fair Work Act 2009 (Cth) (“the Act”) was made.
On 11 August 2020, after hearing the evidence from both sides, Deputy President Alan Colman of the Fair Work Commission, reached a decision that the applicant was indeed an employee and therefore able to file an application for unfair dismissal.
In 2008 one of the senior pastors at the church had approached the applicant encouraging him to quit his job as a delivery driver and become a full-time pastor at the church. After some consideration, the applicant quit his job and proceeded to sell his van in view of serving full-time at the church.
From 2009 to 2011, the applicant served the church in occasional preaching and bible studies without an income.
From 1 October 2011, the applicant was paid a salary whilst working approximately 42 hours a week until March 2020 when his relationship with the church broke down. However, prior to this, the church already had concerns with the applicant’s behaviour.
He allegedly showed a ‘lack of submission’ in carrying out the instructions of his senior pastor. He further accused members of the church of throwing people out and various other wrongdoings without proof.
On Sunday 29 September 2019, the applicant entered the church and disrupted the service. Witnesses testified that the applicant appeared distressed and was ‘ranting’ in an aggressive way cursing the leaders of the church while wearing a shredded suit.
The following week, the church wrote to the applicant prohibiting him from entering the church in light of the safety and security of its members. Further, through various means of communication, the church asked the applicant to repent. They would otherwise release him from his role within the church and would cease to pay him salary.
The applicant continued to refuse to repent and was subsequently released from his position.
An application was brought by the applicant pursuant to section 394 of the Act for unfair dismissal.
The key questions before Mr Colman were:
- Whether the applicant the applicant was an employee of the Church;
- Whether there was an intention to create a legally binding contract; and
- Whether there is therefore jurisdiction to decide whether there was an unfair dismissal pursuant to section 394 of the Act.
Mr Woldeyohannes’ main argument was that he was unfairly dismissed from employment as an assistant pastor of the church.
In response to this, the church argued that the applicant was never an employee of the church and that there is therefore no jurisdiction to bring a claim for unfair dismissal. In support of this argument, the church submitted that:
- There was no contract of employment as:
- there was no offer and acceptance;
- the employment contract was not negotiated, nor were there terms agreed upon; and
- there was no written or unwritten contract;
- There was no intention to create legal relations and that the applicant’s services were merely spiritual and voluntary with no legally binding obligations on parties;
- The salary paid was merely an act of good will as opposed to an act in response to a legal obligation;
- There were no set hours or proper salary; and
- Even if there was contract, it was not a contract of employment.
The applicant in responding to this made the following arguments:
- that the church encouraged him to leave the delivery job and become pastor, and there was therefore recruitment;
- that there was an unwritten contract to undertake work for salary;
- that he received salary regularly and consistently and provided evidence of correspondence of church confirming he was a full-time pastor;
- that he was granted leave and annual leave entitlements and was also paid superannuation; and
- that he never asked for written contract because he had faith board would honour verbal commitment.
In his decision, Mr Colman concluded that by objective assessment of the facts, he found that there was a contract of employment. He further indicated that the applicant had worked full-time as an assistant pastor for 9 years. He was paid regularly and had regular hours of work with a regular set of duties. He was further paid annual and personal leave.
Mr Colman further observed that “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… (the applicant) was an employee of the Church.”
Since Ermogenous v Greek Orthodox Community of SA Inc, the religious character of relationship does not create presumption against an intention to create legal relations. Whether an employer-employee relationship exists should still be observed objectively.
The case therefore proceeded to be decided by the Fair Work Commission as to whether the dismissal was unfair and the remedies if the claim was successful.
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Written by Hongi Han and Ervin Hii.
 Solomon Woldeyohannes v Zion Church in Melbourne Australia Inc  FWC 4194, .