Is a pastor who signed a document that he is in the voluntary service of a church an employee or not?

The employee, a pastor referred an unfair dismissal dispute to the CCMA. The church raised a point in limine that the pastor was not an employee, but the arbitrator disagreed, found the dismissal to be unfair and ordered the church to reinstate the employee.

Steenkamp J held that the arbitrator had correctly found the pastor to be an employee.  The pastor rendered services in the name of the church. At least the following factors listed in section 200A of the LRA were present in the relationship:

• The manner in which the pastor worked was subject to the control or direction of the church. He had to complete a weekly work schedule. If he was unable to conduct sermons, he needed to report to his senior, the regional pastor.
• The pastor’s hours of work were subject to the control or direction of the church. He had to conduct three or four sermons per day.
• The pastor formed part of the Universal Church of the Kingdom of God. He did not present sermons in the name of any other church or simply on his own, albeit “in the name of God”.
• The pastor worked for the church for at least 40 hours per month.
• The pastor was economically dependent on the church. He earned no other income.
• The pastor only worked for or rendered services to the church.

At the arbitration, the church was represented by an official of an employer’s organisation of which the church is a member.  And on the employee tax certificate (IRP5) submitted to SARS the church is indicated as the employer, together with its PAYE and UIF reference numbers. It was further testified at arbitration that the pastor was called to a disciplinary hearing in terms of the church’s rules where he was found guilty of serious forms of misconduct.  This, according to the court is hardly indicative of a relationship other than an employment relationship. The same goes for the assertion by the church’s witness, Mr Tshabalala, that the pastor’s services can be terminated if he contravenes the church’s regulations; and that the pastor fell under his supervision.

“On a conspectus of all the facts, I am not persuaded that the church has succeeded in rebutting the presumption contained in section 200A of the LRA. To paraphrase Lady Hale in Preston, everything in this relationship looks like an employment relationship. If it looks like a duck, walks like a duck and quacks like a duck, it probably is one.”

Contact: Nicolene Erasmus

First published by SA Labour Guide