By Partner, Dr Laura Sowden and Lawyer, Annabel Cheung

FWC considers that a reverend dismissed for stance on gay marriage was not an employee of the Uniting Church.

What happened?

Uniting Church Minister, Reverend Hedley Wycliff Atunaisa Fihaki (the Reverend) was dismissed by the Uniting Church last year.

The dismissal was for 23 breaches of the Uniting Church’s Code of Conduct and ministry practices because of his public statements on social media and mainstream media between January 2019 and August 2021.

The Reverend made statements opposing the Church’s position on same-sex marriage. He had led the Mooloolaba Uniting Church since 2013.

Unfair Dismissal Application

The Reverend made an unfair dismissal claim to the Fair Work Commission. He sought a year’s wages and acknowledgement that he had been denied natural justice.

The Reverend submitted that his Letter of Call was an employment contract, noting:

1. payment of a stipend as a salary which included the issuing of payslips;
2. the payslips included the words such as “employer”, “hourly rate” and “hours worked”; and
3. he was paid superannuation as well as JobKeeper payments.

The Uniting Church disagreed, arguing that the stipend was not a salary, but a “living allowance for needs”. The stipend was funded by contributions of the congregation.

The Uniting Church said the superannuation and JobKeeper payments were fulfilling taxation obligations. The use of employment terms on the payslips were not evidence of an employment relationship, merely a reflection of the payroll software used.

It was the Uniting Church’s position that there was no employment relationship between it and the Reverend

Was the Reverend an employee?

Commissioner Spencer agreed with the Uniting Church. Saying the relationship between the parties was a spiritual relationship and calling.

Further, the stipend, superannuation and JobKeeper were provided to the Reverend to allow for the conduct of spiritual teachings, not to create legal rights or obligations.

The Commissioner said,

“The ministry role within the Church creates a covenantal or spiritual relationship between the Church and the Minister. It is not an employment relationship”.

This was due to the wording of the Letter of Call, which stated “’this document represents the placement arrangement approved by the Presbytery and is not an employment relationship.”

Significantly JobKeeper was specifically referenced by the Government of the time to include religious practitioners, recognising many are not employees.

Commissioner Spencer considered that the Reverend was not unfairly dismissed, because he was not an employee of the Uniting Church.

“I find that [the reverend] was not an employee for the purposes of section 382, and the Commission does not have jurisdiction to deal with his section 394 application as he is not protected from unfair dismissal.”

Commissioner Spencer said even if the Reverend was an employee, then, “there was a valid reason for the dismissal based on the repudiation of the employment relationship” because the reverend had “publicly departed from and significantly recanted” the teachings of the Uniting Church due to his statements to the media.

What does this mean?

Religious organisations concerned about the status of their ministers who receive stipends should be comforted by this finding against an employment relationship.

This case reminds us of the importance of:

1. Whether there is a legal relationship and intention to create legal rights between parties; and
2. The explicit wording of letters of call, or letters of appointment.

This is important when determining an employment relationship between parties, particularly amongst religious organisations such as churches and providers of stipends for scholarships or training in not-for-profit sector organisations.

Rev. Hedley Wycliff Atunaisa Fihaki v Uniting Church In Australia, Qld Synod [2023] FWC 1650 (7 July 2023)