Elspeth Kernebone
19 March 2024
The Fair Work Commission has deemed there is no employment relationship between The Salvation Army and a former officer, dismissing his application for unfair dismissal relief.
Fair Work Commission deputy president Andrew Bell found there was no intention to create binding contractual relations between officer Peter Hobbs and The Salvation Army. Mr Bell said from this it followed Mr Hobbs’ unfair dismissal application must be dismissed.
Mr Hobbs served as an officer for The Salvation Army between 2009 and 2023. He was dismissed from his role on 6 September 2023. He made an application to the Fair Work Commission for relief from unfair dismissal on 26 September 2023.
In 2007, Mr Hobbs signed a declaration accepting undertakings of an officer, that stated “I understand and agree that there is no contract of service or employment nor any other legal relationship between the Army and me”, before he entered officer training. He signed a reaffirmation of these undertakings in 2009 before receiving his Officer’s Commission.
Mr Bell found the parties did not intend to subject their agreement to the adjudication of secular courts. He said it followed that “there is no employment relationship between the parties”.
Mr Hobbs submitted three reasons why there should be found to be an employment relationship, notwithstanding the terms of the 2007 undertaking. These were:
- That the 2007 undertaking purporting to disclaim any employment relationship is inconsistent with the reality of the arrangements between the parties.
- That even if an employment relationship did not arise upon his commissioning as an officer, it commenced once he started being paid.
- That the relationship between the parties reflected in the undertakings of the Officer’s Covenant were concerned with the “spiritual” relationship between parties. It is stated “such a spiritual relationship can co-exist with an employment relationship.”
The Salvation Army disputed that any dismissal was unfair. It also contended that Mr Hobbs was not an “employee”, and therefore not a person capable of obtaining remedy for unfair dismissal under the Fair Work Act 2009.
Mr Bell said The Salvation Army’s position was clearly reliant on the 2007 Undertakings, and what it described as the fundamentally “spiritual” relationship between the parties.
Mr Bell said the intention of the parties was expressly and unambiguously stated in the 2007 undertakings, and that intention disclaimed any employment. He said the objectively ascertainable subject matter of the agreement, the status of the parties to it, their relationship to one and other, and other surrounding circumstances all supported that agreement.
“Here, the Officership within The Salvation Army was a manifestly religious ‘calling’. It was a calling for life, eschewing material gain and outside employment, among many other matters,” Mr Bell said.
Mr Bell said The Salvation Army would provide Mr Hobbs’ “basic needs” only. He said Mr Hobbs was not paid a wage or salary, nor did he have defined hours, but the fundamental relationship was that “an officer voluntarily undertakes to work for God, in Salvation Army service, without guaranteed financial provision of any kind.” He said these factors were supportive of the intention expressed by the 2007 undertaking (as reaffirmed), which was to deny the existence of an employment relationship or adjudication of disputes in a secular court.
Mr Bell said Mr Hobbs gave express undertakings that disavowed any legal relationship between the parties.
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