A Uniting church minister who was sacked for public statements opposing the church’s position on same-sex marriage has lost his unfair dismissal claim.
Hedley Wycliff Atunaisa Fihaki was inducted as a minister of the Mooloolaba Uniting church in 2013, but was dismissed after making anti-same-sex marriage statements in social and mainstream media between January 2019 and August 2021.
The comments went against a Uniting church resolution – passed at a national assembly in 2018 – that the marriage of same-gender couples is allowable under certain circumstances.
In a ruling by the Fair Work Commission last week, commissioner Paula Spencer found Fihaki was not unfairly dismissed as he “was not an employee” of the church.
“The ministry role within the Church creates a covenantal or spiritual relationship between the Church and the Minister. It is not an employment relationship,” Spencer ruled.
However, she said that even if Fihaki had managed to prove he was an employee, the reasons for his sacking remained valid.
Fihaki is national chair of a group identifying as the Assembly of Confessing Congregations of the Uniting church in Australia (ACC), however it is not a recognised council with the Uniting church.
By making a number of statements “to and on both mainstream and social media”, as well as at a church meeting in Sunnybank in December 2020, Fihaki had “publicly departed from and significantly recanted the teachings” of the church, resulting in multiple complaints and 23 breaches of the church’s code of ethics and ministry practice being laid out, Spencer said.
“If it is that Reverend Fihaki is found to be an employee, then I find that there was a valid reason for the dismissal based on the repudiation of the employment relationship,” she wrote.
Much of the arguments between the parties centred on whether Fihaki qualified as an employee of the church.
Fihaki argued he was an employee because the church contributed to his superannuation, he was paid at a rate of $28.32 per hour for work, filed tax returns like “other employees” and was given jobkeeper payments.
“The Service that I am employed for is always ‘practical’ in nature, though the motivation is ‘internal’,” he said, concluding that “if it looks like an employment contract and it smells like an employment contract, then it probably is an employment contract”.
However, Spencer found the “letter of call for congregational placement” issued in 2013 could not “be construed as an employment contract”, and that Fihaki was being paid a stipend as a living allowance, not a wage.
“Whilst the Applicant pointed to certain elements of his position of minister, which he believed evidenced an employment relationship … none of the approaches … were conclusive of such a relationship existing,” she wrote.
“I find that Reverend Fihaki is not an employee or an independent contractor and is in a separate category of spiritual or covenantal relationship.”
