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THE CHURCH OF THE PROVINCE OF SOUTHERN AFRICA DIOCESE OF CAPE TOWN

# THE CHURCH OF THE PROVINCE OF SOUTHERN AFRICA DIOCESE OF CAPE TOWN and CCMA, Galant & Mathebula: In a case involving the definition of who is an employee – can a priest be an employee?

Date of judgment: 7 September 2001

Case Number: C619-2001 Labour Court

Is a priest an employee? The CCMA thought so when an ordained priest was found guilty of misconduct by an ecclesiastical tribunal and denied the right to hold office or perform any ministry for 5 years.

The Church sought a review of the award on the basis that the priest was not an employee as defined in the Labour Relations Act. It was argued that the priest is regarded as working for God, and that the relationship between the priest and the Church could not be regarded as one of employment. Although the priest was paid a stipend, the Church merely provided the framework for the priest’s work, within which the priest served God arising out of a calling do so.

The priest argued that the stipend paid to him was a salary, that this and other benefit were attached to his post that he was required to report to a superior, and that all of these were indication of the existence of a contract of employment.

At issue in the case was the existence or otherwise of a contact between the priest and the church. The Labour Court relied on recent English authority to the effect that the relationship between a church and a priest is not one of employment, but that the priest was the holder of an ecclesiastical office.

The Court of Appeals in the case referred to concluded that "One can say that a minister of religion serves God and serves his congregation, but does not serve an employer." The Labour Court held that that the priest was not an employee, and that he therefore had no right to claim unfair dismissal in terms of the Labour Relations act.

The critical issue that determined the existence or otherwise of an employment relationship in this instance was whether the parties had intended to enter into an employment contract. If not, the definition of "employee" in the LRA does not extend to the relationship that is established.

If the application of the definition of "employee" is to be determined by the intention of the parties, the potential for abuse is obvious. In those cases dealing with sham employment relationships in the form of COFESA type "independent contractual" agreements, there may be no subjective intention to establish an employment relationship, but the Labour Courts have never hesitated to intervene and expose the relationships for what they are.

The case raises the interesting notion of an "office" that might not constitute employment. In other jurisdictions, senior civil servants fall into this category. Perhaps this is the best way to deal with ministers of religion, rather than to look to the intention of the parties and to allow that intention to trump the application of a statutory definition. What about judges? Are they employees?

Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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