Contracts

• Author: International Law Group

Spyridon Ermogenous (plaintiff) was bishop of an Greek Orthodox community in the United States for many years. In 1970, the Greek Orthodox Community of South Australia (defendant) offered him an appointment as archbishop of their church and plaintiff accepted the offer. For over twenty years, plaintiff served in that capacity, receiving a regular agreed-upon compensation.

In 1994, plaintiff filed a claim against defendant in the Industrial Relations Court of South Australia which sought sums of money to compensate him under his employment contract for annual and long service leave. A statute defines "contract of employment" as including "a contract recognised at common law as a contract of employment under which a person is employed for remuneration in an industry." (Nothing in this case turned on the reference to "industry" which was defined to mean, among other things, an "occupation in which employees are employed").

The magistrate ruled in plaintiff's favor. He found that the officers of defendant decided almost all issues relating to church policy and to plaintiff's duties, leaving very little discretion to plaintiff. From these and other factors, he concluded that plaintiff had been serving under an enforceable employment contract and that the law applicable to such contracts required defendant to pay plaintiff sums equivalent to the accumulated annual, and long service, leave. The magistrate decided that the defendant was liable to the plaintiff for $23,989.35 for payment in lieu of accumulated annual leave plus $10,672.80 for accumulated long service leave. Judgment against defendant consisted of the sum of these amounts with interest.

Defendant appealed to a single judge of the Industrial Relations Court of South Australia and later to the Full Industrial Relations Court but both dismissed its appeals. Upon review by the Full Court of the Supreme Court of South Australia, however, that Court, citing English and American cases, allowed the appeal and issued an order dismissing plaintiff's claims. With leave, plaintiff took his case to the High Court of Australia. The High Court allows the appeal and remands the case to the S.A. Supreme Court for further proceedings consistent with its...