Are your internal policies up to scratch?

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Are you relying too heavily on internal policies that may not hold up in court? A recent B.C. Supreme Court decision to hear a pastor's wrongful dismissal claim could have ramifications for HR in a variety of industries.

The Vancouver Chinese Baptist Church had applied to have a claim for wrongful dismissal filed by its former Senior Pastor, the Reverend Alfred Yiu Chuen Kong, dismissed based on  “ecclesiastical” principles. Kong filed the underlying claim after he was dismissed by the VCBC following a long series of VCBC committee meetings and discussions to resolve internal strife involving Kong.

The church claims that the court has no jurisdiction over the removal of a spiritual leader, other than to
“ensure that the church has proceeded in accordance with the principles of natural justice.” It cited a 2011 Ontario decision that found that the jurisdiction of the court may not always apply to a self-governing religious organization’s internal dispute resolution process.

“The B.C. Supreme Court denied the VCBC's application, holding that the question of whether internal church procedures or common law applies to the dispute is governed by the facts giving rise to the dispute,” McCarthy Tetrault employment lawyer Ryley Mennie said. “Because the church had the power to select, control, and dismiss Rev. Kong as Senior Pastor, the court found he was a common law employee, notwithstanding he was ‘a clergyman claiming against a church.' "

Although this ruling concerns religious organizations in particular, it adds to other recent court decisions in which the court ignores appearances and internal structures and opts to decide for itself whether entities are in a common law employment relationship.

“In light of recent judicial decisions in this vein, employers that have in the past relied on internal dispute resolution mechanisms with respect to ‘employees’ should pause and consider potentially unforeseen legal consequences prior to making any substantial changes to the roles, terms, remuneration or obligations of individuals they are engaged with,” Mennie said.

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