Minister loses unfair dismissal claim

A Sunshine Coast minister who was sacked for publicly opposing his church’s position on same-sex marriage has lost his claim for unfair dismissal.

Uniting Church Reverend Hedley Wycliff Atunaisa Fihaki was dismissed last year from Mooloolaba Christian Church after making anti-same-sex-marriage comments in mainstream and social media between January 2019 and August 2021.

The Uniting Church resolved at a national assembly in 2018 that same-sex marriage be allowable under certain circumstances.

Fihaki sought a remedy for unfair dismissal under Section 394 of the Fair Work Act 2009 (Cth), arguing he was an employee and was therefore entitled to it.

In a ruling by the Fair Work Commission this month, Commissioner Paula Spencer determined he was not an employee, and even if he had been, the reason for his sacking remained valid.

Fihaki pointed to evidence that included a 2013 Letter of Call as a contract of employment, the payment of a stipend as a salary, the issuing of payslips (which contained words such as “employer”, “hourly rate” and “hours worked”), and the payment of superannuation and JobKeeper.


He concluded that “if it looks like an employment contract and it smells like an employment contract, then it probably is an employment contract”.

Commissioner Spencer noted there was no position description, duties, regulated weekly hours or span of hours set out in the Letter of Call, and instead Fihaki had a large degree of control over when and how he discharged his ministry and spiritual calling in line with church teachings.

The Uniting Church in Australia, Queensland Synod, argued the stipend was “a living allowance for needs” rather than a salary. It stated superannuation and JobKeeper payments were made to fulfil its obligations under taxation laws, and the use of employment-type terms on payslips was the result of payroll software rather than evidence of an employment relationship.

The synod argued Fihaki’s ministry role created a “covenantal or spiritual relationship between the Church and the Minister” which was not an employment relationship.

“It is grounded in a call from God to ministry, confirmed by the church. Although in a general sense ministry agents serve their congregation, or the particular group or community of people to whom they minister, and are responsive to it, they are not ‘paid’ or ‘remunerated’ for particular services to the congregation or other group involved,” it said.

“There is always a broader vision and a broader range of needs to be considered, and their calling makes them responsible to God and the whole church for their choices.


“They are ministers of the gospel of Jesus Christ serving God’s reign not simply carrying out prescribed responsibilities.”

Commissioner Spencer agreed, saying the “entire factual matrix of the circumstances of the parties was determinative of a spiritual relationship and calling, not the creation of legal rights or obligations”.

“There is no evidence of the basic requirements of a contract of employment or service, and no rights and obligations are set out in evidence. All that the evidence gives rise to is that the Applicant accepted a calling in the capacity of a minister with some entitlements consistent with the provision for allowing the Minister to conduct the spiritual teachings, however there was no specific evidence that supported an employment relationship,” she said.

Fihaki made his anti-same-sex-marriage comments personally and in his capacity as national chair of the Assembly of Confessing Congregations of the Uniting Church in Australia. The assembly is not recognised within the regulations of the Uniting Church in Australia, and has not been otherwise adopted by any council of the Church.

Commissioner Spencer said even if Fihaki had been found to be an employee, there would have been a valid reason for the dismissal based on the repudiation of the employment relationship, in that the minister had “publicly departed from and significantly recanted” the teachings of the church through his media statements. Fihaki was found by the synod to have committed 23 breaches of the church’s Code of Ethics and Ministry Practice, following multiple complaints from his congregation.

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