Supreme Court (SA) agrees Greek minister an employee

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Supreme Court (SA) agrees Greek minister an employee

A full court of the Supreme Court of South Australia has upheld a finding that a Greek Orthodox minister was an employee of the spiritual community, but refused to draw any general assumptions about other clergy and the bodies that engage them.

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A full court of the Supreme Court of South Australia has upheld a finding that a Greek Orthodox minister was an employee of the spiritual community, but refused to draw any general assumptions about other clergy and the bodies that engage them.

The archbishop had successfully claimed more than $35,000 in annual leave and long-service entitlements after 25 years with the Greek Orthodox Community of South Australia.

A series of appeals saw the High Court send the case back to the full bench of the Supreme Court to determine whether the contractual relationship found to exist was one of employment or not.

Chief Justice Doyle referred to the findings of the Industrial Magistrate in the initial case, which indicated the community told the archbishop that he would be one of its employees, that the community maintained records as though the archbishop were its employee, that it treated him 'as an integral part of its organisation' and that it exercised a 'significant degree of control, including control over matters spiritual'.

The chief justice concluded that 'if the relationship was contractual, there were a number of pointers towards the relationship being a contract of employment'. However, he cautioned that the circumstances in this case were 'out of the ordinary' and similar key elements were unlikely to occur often. 'To my mind, no general principle will be established in this case for cases involving a contractual relationship between a minister of religion and a church or an entity that in some way retains a minister to exercise his or her ministry.'

Background

The High Court allowed an appeal against the Supreme Court of South Australia's earlier decision on Greek Orthodox Community of SA Inc v Ermogenous and remitted the matter back to the Supreme Court for further hearing and determination.

Archbishop Spyridon Ermogenous made a claim in the SA Industrial Relations Court against the Greek Orthodox Community of SA Inc for sums he claimed were due to him for annual leave and long service leave. He alleged that he had been employed by the community for nearly 25 years, but had never received any payment for annual leave and that, on termination of his employment, he had not been paid his long service leave entitlements. An Industrial Magistrate found that the community was liable to pay to the archbishop $23,989 for payment in lieu of accumulated annual leave and a further $10,672 for accumulated long service leave.

The Greek Orthodox Community began a succession of appeals against this finding which culminated in the full court of the Supreme Court of South Australia granting leave to appeal and allowing the appeal. This resulted in the archbishop's claims being dismissed.

Findings

In considering leave to appeal, Chief Justice Doyle referred to the community's submission that the archbishop was 'not capable in law of being an employee of the community'. He said this submission was rejected by all members of the full court and was rejected by the High Court by implication. Accordingly, the chief justice said, a grant of leave to enable that absolute submission, that there cannot be a contract between a minister of religion and a church or such an entity, was not a reason to give or to continue leave to appeal.

Chief Justice Doyle said the issue of whether the contract between the community and the archbishop was one of employment involved the application of well-established principles, but applying these principles to particular circumstances could be difficult. He said the circumstances in this case were out of the ordinary and that cases involving similar key elements were unlikely to occur often. This made him cautious about granting leave to appeal the point. 'To my mind, no general principle will be established in this case for cases involving a contractual relationship between a minister of religion and a church or an entity that in some way retains a minister to exercise his or her ministry.'

He said a grant of leave to appeal would not lead to the establishment of any relevant or helpful general principle.

On the question of whether a contract of employment existed, Chief Justice Doyle referred to the findings of the Industrial Magistrate in the initial case. These included that the community told the archbishop that he would be one of its employees and a concession that the relationship between the community and priests it recruited was one of employment. The magistrate also found that the community maintained records as though the archbishop was its employee, and that it treated him 'as an integral part of its organisation'. The Industrial Magistrate went on to make findings that officers of the community exercised a 'significant degree of control, including control over matters spiritual'.

The chief justice concluded: 'As these extracts from the magistrate's reasons indicate, if the relationship was contractual, there were a number of pointers towards the relationship being a contract of employment. That being so, this court should be slow to overturn a decision by the Industrial Court that the contract is one of employment.' Accordingly, he rescinded the grant of leave to appeal and dismissed the appeal.

See: Greek Orthodox Community of SA Inc v Ermogenous, [2002] SASC 384 - 26 November 2002 - Doyle CJ, Mullighan and Bleby JJ.

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