Universal Church of the Kingdom of God v Ccma

• Jurisdiction: South Africa
• Judge: Steenkamp J
• Judgment Date: 28 November 2013
• Docket Number: D 348/12
• Hearing Date: 08 November 2013
• Court: Labour Court

Steenkamp J

Introduction

[1]

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

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[2]

The third respondent was a pastor of the applicant, the Universal Church of the Kingdom of God. He claims that he was dismissed in December 2011. He referred an unfair dismissal dispute to the CCMA [1] . The church raised a point in limine that the pastor was not an employee. The arbitrator disagreed. The church wishes to have that award reviewed and set aside. The arbitrator also found that the pastor's dismissal was fair. The parties agreed that I should first decide whether the finding that the pastor was an employee, is reviewable. If so, caedit questio. If not, the parties will return to court to argue whether the arbitrator's further finding – that the dismissal was unfair – is reviewable.

[3]

For the reasons that follow, I have come to the conclusion that the award is not reviewable. In my view, the arbitrator correctly found the pastor to be an employee. In doing so, I distinguish the earlier judgment of this Court in Church of the Province of South Africa (Diocese of Cape Town) v CCMA [2] ; but in doing so, I bear in mind that that judgment was handed down before the addition of section 200A to the Labour Relations Act. [3]

Background facts

[4]

Mr Myeni, the third respondent, became a trainee pastor in the church in 1998. He only signed a document titled "Declaration of Voluntary Service" in 2010, although he had been ordained as a pastor by then.

[5]

The pastor was ordained in 2004. Mr Hitchings submitted that he was never consecrated. [4] However, there was no direct evidence in support or against this assertion in the arbitration. At best, the church's representative put the following to him in cross-examination:

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"You were a volunteer assistant helper for two years. That is your evidence there. You became a trainee or auxiliary pastor in 1998 January. Okay, you were not a consecrated pastor then and you started receiving your stipend in 1998 as well. – Yes.

Okay. I just want to confirm. You were asked the question of what you think your duties are and you said your duty is to preach the gospel of God throughout the world. Is that correct? – Yes.

As a pastor. Okay. You testified that you were ordained or consecrated. – Yes.

In 2004, I think it is 2006. – 2006."

[6]

It is therefore not clear from the arbitration record whether the pastor had been consecrated or not. It is common cause that, at the very least, he had been ordained. But the "Declaration of Voluntary Service" only refers to the position of a "trainee pastor". The declaration states, inter alia:

"I am volunteering as a trainee pastor at the Universal Church of the Kingdom of God (hereinafter referred to as the "Church").

...

During the entire period of my training programme to date, and henceforth,

I always understood that:

....

I am fully aware that the Bishop and the Leadership of the Church are entrusted by God with the appointment for approval or removal of trainee pastors and irrevocably submit myself to their authority.

The Bishop and the Leadership of the Church are, at any time during my voluntary training period, entitled and obliged to decide on my suitability as a trainee pastor and therefore reserve the sole right of summarily terminating my training for this or any other reason.

My trainee position was accepted conditional upon my dedication to developing my spiritual maturity and practical experience, to the extent that I would be eligible for a future appointment as a consecrated pastor or senior pastor."

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[7]

At the time that his services were terminated, the pastor was, at the very least, ordained. On the evidence before the arbitrator, I doubt that he could still be considered to be in training. Yet the Declaration must be considered, together with all other factors, to decide whether he was an employee or not. There is no evidence that he signed a further contract of employment or other agreement that superseded the Declaration.

The applicable test

[8]

Mr Mfungula argued that the application for review must be tested against the reasonableness test set out in Sidumo & another v Rustenburg Platinum Mines Ltd & others [5] . However, as this court has pointed out previously [6] , it is bound by the decision of the Labour Appeal Court in SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others [7] , in which the LAC held that, in regard to a commissioner's finding on jurisdiction, the question is not whether the commissioner's finding was reasonable but whether on the facts the applicant was an employee. The basis of this approach, as Van Niekerk J pointed out in Workforce Group, [8] is that a ruling on jurisdiction made by the CCMA is made for convenience - the CCMA is a creature of statute and cannot decide its own jurisdiction. Whether the CCMA has jurisdiction is a matter for this court to decide. In other words, the issue before the court is whether, objectively speaking, there existed facts which would give the CCMA the jurisdiction to entertain the dispute, ie that established that the pastor was an employee of the church as defined by s 213 of the LRA. That was indeed the first question posed by the church at the arbitration. If so, the further question is whether the arbitrator reasonably concluded that his dismissal was unfair. The

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parties agreed that the second question will stand over for later determination.

Evaluation / Analysis

[9]

Mr Hitchings relied strongly on the case of Church of the Province of South Africa (Diocese of Cape Town) v CCMA [9] for his argument. But at the outset, it must be noted that that case was decided before the legislature introduced s 200A of the LRA in 2002. [10] And although the judgment in Salvation Army (South African Territory) v Minister of Labour [11] was handed down on 2 September 2004, the learned acting judge in that matter did not refer to section 200A.

[10]

Section 200A reads as follows:

"200A. Presumption as to who is employee.—(1) Until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:

(a)

the manner in which the person works is subject to the control or direction of another person;

(b)

the person's hours of work are subject to the control or direction of another person;

(c)

in the case of a person who works for an organisation, the person forms part of that organisation;

(d)

the person has worked for that other person for an average of at least 40 hours per month over the last three months;

(e)

the person is economically dependent on the other person for whom he or she works or renders services;

(f)

the person is provided with tools of trade or work equipment by the other person; or

(g)

the person only works for or renders services to one person.

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(2) Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act.

(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act, any of the contracting parties may approach the Commission for an advisory award on whether the persons involved in the arrangement are employees.

(4) NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining whether persons, including those who earn in excess of the amount determined in subsection (2) are employees.

[S. 200A inserted by s. 51 of Act 12 of 2002.]"

[11]

There is no dispute that the pastor earned less than the prescribed threshold. [12] He was paid R1875, 00 per week, ie about R97 500 per year. He was also given accommodation that was valued at R4 500 per month or R54 000 per year. The Code of Good Practice was published on 1 December 2006 [13] , i.e. after the CPSA and Salvation Army judgments. This Court has to determine the question whether the pastor was an employee with regard to s 200A and the Code, as the arbitrator did. In terms of ss 203(3) and 203(4) of the LRA, any person – including the CCMA arbitrator and this Court – must take the Code into account for the purposes of deciding if the pastor was an employee.

[12]

Section 200A establishes a rebuttable presumption as to who is an employee for the purposes of the LRA – one that did not exist at the time of the CPSA judgment. In order to be presumed an employee, an applicant must demonstrate that he or she works for or renders services to the person or entity...