Taupō Legal Corner: I work in a faith-based organisation, does employment law apply?

If you are engaged as an ordained minister then depending on your denomination, you may not legally be an employee. Photo / Getty Images

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OPINION

If you are a non-ordained employee working for a faith-based organisation, like a church, normal employment law applies.

However, if you are engaged as an ordained minister then depending on your denomination, you may not legally be an employee.

This means normal employment law may not apply.

An example of how the courts apply employment law to ordained ministers can be found in a case called Mabon v Conference of the Methodist Church in New Zealand [1998] NZCA 244. In this case, John Mabon was an ordained minister in the Methodist church.

Following various complaints, in 1996 Mabon was dismissed from his parish position. He then sought to challenge his dismissal as "unjustified" under employment law. His legal challenges ended up in the Court of Appeal. The Court of Appeal ruled that Mabon was not an employee, and made the following statements:

1. "Clearly, and reflecting the separation of Church and State, courts must be reluctant to determine what are at heart ecclesiastical disputes where matters of faith or doctrine are at issue."

2. "The common law recognises that not all agreements are intended to give rise to legal relations."

3. "The particular arrangement between Church and Minister must be analysed through a contemporary lens to determine whether the parties intend legal relations. The concept of calling is an important part of the subject matter but is not controlling."

4. "Amenability to contract would be subject, of course, to any overriding provisions of the constitutional arrangements binding the parties … but under the common law and the existing legislation those difficult questions are generally for the churches and their ministers to determine."

This means that there is no overriding rule about whether ministers are employees.

The court will assess each case by looking at any agreement between the minister and the church, and any constitutional or policy documents that are relevant to the church. They will try to understand whether the church and the minister intended to create an employment relationship.

Most denominations have clear policies that ministers are not employees. However, some denominations or independent churches might decide to employ ordained ministers.

Sometimes a mistake might be made when a minister is given an employment agreement even though that denomination would normally say that there should not be an employment relationship. Finally, a person can be an ordained minister but also be employed in a separate capacity, for example in an executive position.

Whether or not a minister is not an employee they are still entitled to fair processes and natural justice. They are entitled to seek advice from a lawyer.