Recently the Labour Court and the Labour Appeal Court had to deal with the matter of whether a pastor who is in the voluntary service of a church is an employee of the church or not.
A pastor in the Universal Church of the Kingdom of God referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) after his service was terminated on the ground of alleged misconduct. The church argued that the pastor was not an employee of the church and that the CCMA had no jurisdiction to hear the matter.
The arbitrator disagreed and found the dismissal to be unfair. The church was not happy with the outcome of the arbitration process and approached the Labour Court to review and set aside the arbitration award. In the Labour Court, Justice Anton Steenkamp held that the arbitrator was correct in his finding that the pastor was an employee of the church. The church was granted leave to appeal to the Labour Appeal Court.
The Labour Court based most of its decision on section 200A of the Labour Relations Act, which creates a rebuttable presumption as to who is an employee for the purposes of the LRA.
The court assessed the relationship between the church and the pastor against the factors listed in section 200A and found that the church failed to rebut the presumption in section 200A of the LRA.
The court referred extensively to developments in English law. Steenkamp clearly interpreted the decisions by the United Kingdom Supreme Court to mean that the manner in which the minister is engaged and the rules governing the service as well as the intention of the parties must be taken into account against the specific factual background.
He proceeded to consider the relationship between the pastor and the church, mainly with reference to the presumptions outlined in section 200A, despite his reference to numerous cases highlighting the importance of considering the specific merits and facts of each case to establish whether the parties did intended an employment relationship.
In the specific circumstances, it was clear from the facts that neither the pastor nor the church had the necessary and deliberate intention to enter into any legally binding contract.
In the Labour Court, the church relied on the 2001 case of Church of the Province of Southern Africa (Diocese of Cape Town) vs the CCMA and others. The court distinguished the earlier judgment in the Church vs CCMA case and noted that the case was decided before the introduction of section 200A of the LRA in 2002.
In the Church vs CCMA case, an Anglican priest was suspended on grounds of misconduct after a disciplinary hearing. The CCMA declared the dismissal as unfair and the church took the case to the high court, claiming that the CCMA had made a mistake because the relationship between the church and the priest was not an employment relationship and that the CCMA therefore did not have the jurisdiction to decide the case.
The court came to the conclusion that in order to establish an employment relationship there must be a contract of employment and as there was no legally enforceable contract between the parties, there was no employer and employee relationship between them.
What was important in this case was that the arbitrator determined the issue on the assumption that there was a contract between the parties without determining whether that was the case and the court thus found there was no intention to create an employment contract.
The Labour Court chose rather to rely on the 1999 case of Schreuder vs Nederduitse Gereformeerde Kerk Wilgespruit and others, in which a minister of the Dutch Reformed Church was unfairly dismissed by the church and the court was of the view that the intention of the contract of employment was to create contractual duties in the form of an employment contract between the minister and his congregation.
In the latter case, however, there was a clear intention to create a contract of employment, which was neither the case in the Church vs CCMA to case nor in the Universal Church of the Kingdom of God case. The approach taken in the Church vs CCMA case is important for purposes of the argument in the Labour Appeal Court, where the church submitted that the only question relevant was whether the parties had the necessary intention to conclude any contract or to be bound by it and, if there was no such intention, that section 200A of the LRA did not apply.
Acting Judge Simon Ndlovu took the view that, on a proper interpretation of section 200A and the code of good practice that came into force in 2006, both required the existence of an employment contract or some form of contractual arrangement, whether in writing or not and regardless of the form thereof.
The Labour Appeal Court therefore proceeded to ask whether there was any legally enforceable agreement in place between the pastor and the church.
From their conduct and the language used in the agreement, it was clear that the necessary intention (animus contrahendi) did not exist and the court correctly held that no contractual obligations existed between the pastor and the church. The appeal was upheld and the decision of the Labour Court set aside.
It is worth noting the 2005 case of Wagenaar vs the United Reformed Church SA, in which a minister of the United Reformed Church was dismissed by his congregation.
Despite the ruling that there was a contractual relationship between the minister and the church (based on the specific factual circumstances of the case and the necessary intention of the parties), the court highlighted the conflicting views in both the Schreuder vs NGK and Church vs CCMA cases.
Most importantly, the court stated there is no general rule in South Africa regulating the employment relationships of ministers of religion. “It seems that there is no general rule in South Africa as to whether a minister of religion is an employee or not.
“Nor is there likely to be. Different denominations have different teachings and ideologies. In my view each case depends upon the facts.”
The constitutional right to freedom of religion allows religious organisations and churches to give meaning to and to define the various positions in the church, including the position of minister according to their own religious views. Each case should therefore be judged on its own merits and facts. This view seems to be supported by the Labour Appeal Court in the case of the Universal Church of the Kingdom of God.
Dr EH van Coller is a senior lecturer in the law faculty at Rhodes University