Australian High Court holds
that Greek Orthodox Archbishop who left his diocese in United States to preside
over Orthodox community in Australia was serving under “contract of employment”
with rights to annual and other leave guaranteed by Australian labor law
Spyridon Ermogenous (plaintiff)
was bishop of an Greek Orthodox community in the United States for many years.
In 1970, the Greek Orthodox Community of South Australia (defendant) offered
him an appointment as archbishop of their church and plaintiff accepted the
offer. For over twenty years, plaintiff served in that capacity, receiving a
regular agreed-upon compensation.
In 1994, plaintiff filed a claim
against defendant in the Industrial Relations Court of South Australia which
sought sums of money to compensate him under his employment contract for annual
and long service leave. A statute defines “contract of employment” as including
“a contract recognised at common law as a contract of employment under which a
person is employed for remuneration in an industry.” (Nothing in this case
turned on the reference to “industry” which was defined to mean, among other
things, an “occupation in which employees are employed”).
The magistrate ruled in plaintiff’s favor. He found that the officers of defendant decided almost all issues relating to church policy and to plaintiff’s duties, leaving very little discretion to plaintiff. From these and other factors, he concluded that plaintiff had been serving under an enforceable employment contract and that the law applicable to such contracts required defendant to pay plaintiff sums equivalent to the accumulated annual, and long service, leave. The magistrate decided that the defendant was liable to the plaintiff for $23,989.35 for payment in lieu of accumulated annual leave plus $10,672.80 for accumulated long service leave. Judgment against defendant consisted of the sum of these amounts with interest.
Defendant appealed to a single judge of the Industrial Relations Court of South Australia and later to the Full Industrial Relations Court but both dismissed its appeals. Upon review by the Full Court of the Supreme Court of South Australia, however, that Court, citing English and American cases, allowed the appeal and issued an order dismissing plaintiff’s claims. With leave, plaintiff took his case to the High Court of Australia. The High Court allows the appeal and remands the case to the S.A. Supreme Court for further proceedings consistent with its opinion.
After examining the record, the High Court first concludes that the industrial magistrate’s findings did not support a conclusion by the Full Court of the S.A. Supreme Court that the law should look upon the “church” as wholly distinct from defendant. Defendant dealt in religious, cultural and athletic activities and not all members belonged to the Orthodox Church.
Nor is it sound to analyze arrangements between religious or similar bodies and ministers of religion based on presumptions. For example, it does not make sense to “presume” that these arrangements are predominantly “spiritual” or that neither party to religious arrangements relating to property or economic rights intends them to be enforceable at law. “At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the [plaintiff] to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition.” [N/A]
The record also indicates that the magistrate did, in fact, make the parties’ contractual intentions a central focus of his rulings. “He undertook a similarly close examination of the evidence that had been called at the trial of this matter about those subjects. That is, he examined, with care, all of the objective circumstances which bore on whether the parties intended to make a contract, as distinct from an arrangement binding only in honour.” [N/A] The bottom line is that the Supreme Court drew inferences as to the lack of contractual intent that the magistrate’s findings cannot support.
Citation: Ermogenous v. Greek Orthodox Community of S.A., Inc., 187 A.L.R. 92 (Aust. High Ct., March 7, 2002).
