[2021] FWC 2493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Travis Barnes
v
Castlemaine Church of Christ
(U2020/12903)

COMMISSIONER MCKINNON

MELBOURNE, 4 MAY 2021

Application for an unfair dismissal remedy – whether small business employer – whether harsh, unjust and/or unreasonable – compensation ordered.

[1] Pastor Travis Barnes was the Associate Minister of the Castlemaine Church of Christ from 9 April 2018 until he was dismissed for serious misconduct on 24 September 2020. The alleged misconduct arose from certain communications with members of the congregation, which the Church considered to be misleading and prejudicial to its interests, and inconsistent with the duties of a Minister.

[2] Four days after his dismissal, Mr Barnes applied in time for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).Through his application, Pastor Barnes seeks reinstatement or compensation for the dismissal.

[3] It is agreed that Pastor Barnes was dismissed and that he is protected from unfair dismissal: the Church is a national system employer; Pastor Barnes was employed for more than the minimum employment period; and his annual income of $80,968 was less than the high income threshold. The dismissal was not a redundancy.

[4] At the time of dismissal, the Church had two employees, Pastor Dave Tolputt and Pastor Barnes. However, I have found that the Church is not a small business employer and that the Small Business Fair Dismissal Code does not apply to the dismissal of Pastor Barnes.

[5] I have also decided that the dismissal was unfair and that compensation is the appropriate remedy.

[6] These are my reasons.

Is the Church a small business employer?

[7] At a particular time, an employer is a small business employer if it has less than 15 employees, including casual employees employed on a regular and systematic basis. When counting how many employees are employed by an employer, associated entities are taken to be one entity. 1

[8] In the Act, the term ‘associated entity’ is given same the meaning as section 50AAA of the Corporations Act 2001 (Cth), which says this:

50AAA Associated entities

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

[9] The Castlemaine Church of Christ is established and governed by its Constitution. It has no related bodies corporate and no other corporate entities over which it has or asserts control.

[10] The Church is a member (affiliate) of Churches of Christ in Victoria and Tasmania Incorporated (CCVT), an association registered under the Associations Incorporation Reform Act 2012 (Vic). It pays annual membership fees to CCVT together with a percentage of its general offerings. Its Constitution requires that the Church to be affiliated with CCVT. While it can seek to disaffiliate, this can only occur by mutual agreement (by resolution at the Annual General Meeting). Affiliation can also be terminated as a result of disciplinary or grievance processes conducted in accordance with the CCVT Constitution.

[11] Under its affiliation agreement with CCVT, the Church supports the purposes of CCVT and must comply with the CCVT Constitution. The Church has limited autonomy. It can determine its own methods of ministry but is bound to support the values and purpose of CCVT. On significant financial and operational matters, it is subject to guidance from CCVT – including in relation to the appointment and accreditation of Ministers and other leaders (including Board members), good governance, property use and cooperation with CCVT’s mission and strategic direction including ‘church planting’ and ‘intentional conversations’.

[12] CCVT has the power to discipline the Church for conduct that is prejudicial to CCVT or inconsistent with its purpose, or for non-compliance with the CCVT Constitution or the affiliation agreement. In those scenarios, disciplinary action is considered by an impartial Dispute Sub-committee appointed by CCVT and can take the form of reprimand, suspension or disaffiliation. The Church has a right of appeal against disciplinary decisions but requires at least three quarters of members present with voting rights at a Disciplinary Appeal hearing to overturn a decision. Disputes between the Church and CCVT that fail to resolve at mediation are determined by the Dispute Sub-committee.

[13] The Church has beneficial use of a Church building at 66 Blakely Road, Castlemaine, Victoria, which is owned by the Properties Corporation of the Churches of Christ under The Churches of Christ in Victoria Property Act 1941 (Vic) and held on trust for CCVT. The Trustees of the Properties Corporation are the Directors of CCVT. They have the power to deal with church property as they see fit and subject to the terms of the trust, and although it commits to consultation, it can do so with or without the consent of the Church.

[14] The Church is an affiliate of CCVT.

Does CCVT control the Church?

[15] In section 50AAA, ‘control’ is a defined term and means:

50AA Control

(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(2) In determining whether the first entity has this capacity:

(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

(b) any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(4) If the first entity:

(a) has the capacity to influence decisions about the second entity’s financial and operating policies; and

(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;

the first entity is taken not to control the second entity.

[16] Does CCVT control the Church? The answer depends on whether CCVT has the capacity – in terms of its practical influence - to determine the outcome of decisions about the Church’s financial and operating policies, having regard to any practice or pattern of behaviour affecting those policies. In my view, the answer is yes.

[17] CCVT requires affiliates to have a written constitution or charter setting out their purpose and objectives and dealing with at least: the definition of membership, appointment of leaders and ministers, how votes are conducted, financial management, recording and reporting, CCVT affiliation, not-for-profit status and winding up as well as legal requirements under the Churches of Christ in Victoria Property Act 1941 including decision making about property development and sale.

[18] CCVT has practical input into the content of these arrangements. It determines the Code of Ethics for Ministers, sets their terms and conditions of their employment and is responsible for minister accreditation - a condition of ongoing ministry. In the Church, Pastors are members of the Board with voting rights. CCVT determines the Code of Conduct for Church leaders, including Board Members. In doing so, CCVT has direct influence over the Board’s management of the Church’s financial and operational affairs.

[19] CCVT requires church leaders to adopt and implement a range of policies, including its Safe Places policy, Child Safety policy, the Child Safety Reporting Procedure and Marriage Licence policy. Consistent with the legal position, Church property must be registered in the name of the Properties Council and consultation is required over any proposed property development.

[20] CCVT is regularly consulted on governance matters. Where called upon, CCVT personnel work in partnership with members of the Church Board and Ministry to deal with operational matters of significance, such as in this case, the relationship between its ministers as well as the counsel and termination of employment of one.

[21] CCVT has the power to impose sanctions on the Church, including disaffiliation for any conduct considered prejudicial to it, and subject to an appeal mechanism which sets a high threshold for the revocation of sanctions. If attendance at Church falls below 20 people, the Church is required to transfer its management to CCVT. In the event of disaffiliation, the Church would no longer have the beneficial use of the Church building in which it conducts its affairs. For all intents and purposes, the Church would and could no longer be a Church of Christ.

[22] In practice, the various structures and mechanisms requiring the Church’s alignment with CCVT on key matters mean that CCVT can have the final say on financial or operating policies of the Church, should it so wish. Its capacity to control decisions of the Church does not arise because it is under a legal obligation to exercise that capacity for the benefit of someone other than CCVT’s members. CCVT is not merely an arms-length ‘peak body’ or advisory service. The notion that affiliation – once given – can simply be withdrawn, is inconsistent with both the legal and practical reality. The relationship between CCVT and the Church is more than that. Each forms part of the religious body known as the Churches of Christ Victoria and Tasmania, and CCVT exerts significant influence over the administration of the Church. 2

[23] The two cases relied on by the Church in support of its contention that it is a small business employer can be distinguished on the facts and do not persuade me that is so.

[24] I find that CCVT controls the Church in the manner contemplated by section 50AA. It is an associated entity of the Church.

The Church is not a small business employer

[25] The Church concedes that if it is an associated entity of CCVT, at least 15 employees were employed at the time of Pastor Barnes’ dismissal. The Church was not a small business employer at that time. It is not necessary to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code.

Summary of events leading to dismissal

[26] On 9 April 2018, Pastor Barnes was employed by the Church as Associate Minister, The role reported to, and was required to take overall direction from, Senior Minister Dave Tolputt (who was working on a part-time basis while also working with Scripture Union). The employment agreement with Pastor Barnes simply made provision for termination of employment “in accordance with the Terms and Conditions of Employment for Ministers”. The Terms and Conditions of Employment for Ministers are not in evidence.

[27] Toward the end of 2018, Pastor Barnes was becoming frustrated with the lack of progress in an initiative he had brought forward known as ‘Youth Tribes’. He wanted to be appointed to lead the Church’s youth ministries for 2019. He was not supported in this desire from either the current youth ministry leaders or Pastor Tolputt.

[28] Between 5 and 10 November 2018, Pastor Barnes and Pastor Tolputt had a series of exchanges about the issue. Pastor Barnes proposed that he and his wife lead the youth ministry in 2019 because the current leaders were unsuitable, and that this proposal be put to the Church Board. Pastor Tolputt did not agree and encouraged Pastor Barnes to take a different approach. He suggested that Youth Tribes might be better considered an experiment, and that they move toward building a “truly shared idea”.

[29] On 9 November 2018, the two ministers had a heated discussion about the direction of youth ministry. Pastor Barnes described it as “damaging” to the “working relationship”. Pastor Tolputt apologised for his part in the conflict but Pastor Barnes did not. The next day, on 10 November 2018, Pastor Barnes repleaded his case for leading the youth ministry. In an email describing his various states of grief, Pastor Barnes made various accusations that Pastor Tolputt had ignored him for months, not listened to him, not taken his role in the Church seriously, not defended him in preference to the current youth leaders, not supported Youth Tribes, attacked him when he had criticised youth group, been prepared to lead and make decisions that did not have his blessing or the blessing of the elders and the board, but not willing to compromise.

[30] At a Board meeting on 21 November 2018, Pastor Tolputt expressed the difficulties he was having with getting Pastor Barnes to accept his direction. He was angry that Pastor Barnes had defied his instruction not to take the Youth Tribes issue to the Board – instead providing it with a report on the matter. The Board saw the behaviour of the two ministers as ‘damaging’. It suggested mediation between them, and both agreed. An attempt at mediation occurred the following week, facilitated by board member, John Taylor. It was unsuccessful in part because Pastor Tolputt lost his temper, but also because Mr Taylor was too close to the issue and some of his comments were capable of being seen as siding with Pastor Barnes.

[31] In February 2019, in response to the conflict it had observed between the two ministers on 21 November 2018, the Board issued a Governance and Management Process Policy. The document was discussed between Pastor Barnes and two members of the Board on 13 March 2019. The policy dealt with the relationships of and between Senior Minister, Associate Minister and the Board, and set out a dispute resolution process. It clarified that Associate Ministers should accept the direction of the Senior Minister unless their concerns were of a serious nature, and that reports to the Board from the Associate Minister were limited to matters delegated to them by the Senior Minister.

[32] Between June and August 2019, there was a review of Pastor Barnes’ employment. Feedback from the review noted two areas of concern about his performance: lack of tangible outcomes in key areas; and litigating and relitigating issues in a divisive and unproductive manner. It set out action items and indicators of success for the year ahead. It confirmed that Pastor Barnes reported to Pastor Tolputt and that his reports to the Board were for information.

[33] On 10 September 2019, Pastor Tolputt approached Pastor Barnes to express his commitment and friendship, and his desire to work toward repairing the friendship. Pastor Barnes was disbelieving. His email to Pastor Tolputt later that day expressed sentiments to the effect that actions speak louder than words and that he had not felt the commitment or friendship of Pastor Tolputt over the last twelve months. He complained that Pastor Tolputt had been consistently disparaging of him, unwilling to listen to concerns, argumentative, made personal attacks and displayed unhealthy outbursts of anger toward him – thus making critique of any kind ‘almost impossible’. This was to be the last workplace discussion between them for some months.

[34] On 26 September 2019, Pastor Barnes provided his response to the performance review meeting on 12 August 2019.

[35] On 15 October 2019, Pastor Barnes was given a warning about the email of 10 September 2019, seen as the latest of many actions and conversations of a ‘divisive nature’, and issued following an earlier ‘verbal warning’ from Pastor Tolputt to Pastor Barnes in November 2018. He responded to the warning on 25 October 2019 with a lengthy explanation. He apologised if his communication was seen to be divisive and expressed his forgiveness for the ways Pastor Tolputt had hurt him. He offered to meet with him, or to participate in mediation, and requested a response from the Board. Mr Taylor, now no longer on the Board, attended the meeting as support person for Pastor Barnes. Mr Taylor subsequently wrote to the Board about his concerns with the treatment of Pastor Barnes but did not receive a reply.

[36] On 29 October 2019 an ‘Accord’ was prepared by members of the Board in an attempt at a ‘new start’ for the relationship between the two ministers. Pastor Barnes signed the Accord on 7 November 2019. Pastor Tolputt refused to sign the Accord.

[37] On 18 November 2019, Pastor Barnes wrote to Pastor Tolputt asking if he had accepted the explanations given in response to the written warning, and whether they could sit down, work through their differences and leave the past behind them. Pastor Tolputt responded two days later, laying the blame for issues between them at Pastor Barnes’ poor behaviours. He confirmed his agreement with the Board that the warning had been justified and urged for repentance from Pastor Barnes. He encouraged Pastor Barnes to achieve the outcomes of the performance review to demonstrate his value as an asset to the Church.

[38] On 21 November 2019, Pastor Barnes expressed sadness at the response from Pastor Tolputt and confusion at what he saw as ‘disparity’ between the position of Pastor Tolputt and the Board. He stated that he was uncomfortable with the proposed format of performance review meetings and asked for another Board member to sit in on them. There was then a series of further exchanges about the format of performance meetings with he, Pastor Tolputt and Chris Dubbeld, another member of the Board. Pastor Tolputt pressed for the meetings and Pastor Barnes resisted because he wanted to first put to bed the written warning.

[39] On 16 December 2019, Pastor Barnes made a formal bullying complaint against Pastor Tolputt. An investigator was appointed to investigate the bullying complaint. The comprehensive investigation, which included in-depth interviews with the two ministers, found that while matters could have been better handled, the complaint of bullying was unfounded. It concluded that Church processes and procedures, as well as both Pastor Tolputt and Pastor Barnes, had contributed to a breakdown in the relationship between them. Recommendations were made to improve the Church’s governance structure and processes, including that comments from Pastor Barnes about his difficulties with Pastor Tolputt six months earlier should have been acted on at the time they were made and not left to go unresolved.

[40] On 29 January 2020, the Church Board wrote to Pastors Tolputt and Barnes to advise the outcome of the investigation. In its letter to Pastor Tolputt, the Board expressed its commitment to working with him as the Senior Pastor of the Church. In its letter to Pastor Barnes, the Board noted that it had done what he asked by undertaking an impartial investigation of the matter which was now considered closed.

[41] In early February 2020, Pastor Barnes wrote to the Chairman of the Board, David Murdoch, to thank him for investigating the bullying complaint and to indicate that he had been reflecting on his role at the Church. He expressed doubts about the Board’s support for his role and its commitment to a fair and respectful workplace. He said that he was considering whether it “might be best to peacefully depart form the Church” (a sentiment reiterated twice more in the same letter) and asked for further information to help in his deliberations.

[42] The information requested included access to relevant sections of the investigator’s report, to ensure that the investigation had been thorough. He asked the Board if it accepted his explanations for the earlier written warning, and if so, whether it could be withdrawn as an expression of goodwill. If it could not be withdrawn, he asked for an outline of what was expected of him moving forward. He queried whether members of the Board had a grievance toward him and appealed to any that did, including Pastor Tolputt, to meet with him for the purpose of reconciliation.

[43] In a Board meeting on 12 February 2020, Pastor Tolputt indicated that he was reconsidering his career path and wanted to return to the Church full time. The Board agreed that his return to full time duties would be in the Church’s best interests, and that there were sufficient funds to budget for this change. At some point in the meeting, Pastor Barnes was excused. Pastor Barnes’ response to the investigation outcomes letter was tabled and discussed. The Board also agreed that Pastor Barnes’ work review was to recommence.

[44] On 19 February 2020, the Board wrote to Pastor Barnes in response to his letter of early February. It indicated advice from CCVT that it was not appropriate for him to see the full investigation report, but that the Board was satisfied with the investigation. It advised that the written warning would not be retracted and that no further discussion would be entered into about it. It referred to earlier correspondence setting out the expectations from him in terms of performance. It confirmed that his desire for reconciliation had been communicated to board members, who were able to seek him out as they wished. In relation to the prospect of his resignation, it said this:

“It is clear that your working relationship with Lead Pastor Dave Tolputt has significantly broken down and we can understand you considering your options. Regrettably, the Board has also lost confidence in you as the Associate Minister at the Castlemaine Church of Christ. Should you ultimately decide, as you have indicated, it would be best for you to “peacefully depart the church”, the Board will unanimously support this, including funding appropriate Counselling to assist you to make the transition.

Any decision you make is up to you and the Board is unable to advise you in these deliberations. We do however expect you to notify us of any decisions as they are made.

Travis, this was not the end result that we had hoped for, but we do appreciate your assurance that whilst these deliberations are taking place, you will “continue to quietly serve the Church and encourage the congregation in their Christian walk.”

[45] On 10 March 2020, Pastor Barnes gave his report to the Board, which included an update on his “work situation”. The report stated that “the reality is the events of the past six months or so have diminished my desire to continue serving at the Church”. It referred to recent meetings with members of the Board and his hope for additional meetings, as well as a planned meeting with his external mentor. He then stated:

“I have indicated to David Murdoch my concern about the impact an unhealthy parting of ways would have upon the Castlemaine Church of Christ congregation. I would desire to depart in a manner that does not result in significant Church division. I believe that if Dave Tolputt and myself were to participate in mediation this would help to reduce the tensions in our relationship and potentially lay the framework for a peaceful parting of the ways between us.”

[46] Later on 10 March 2020, Mr Murdoch advised Pastor Barnes that Pastor Tolputt had not agreed to participate in mediation.

[47] On 11 March 2020, Pastor Barnes was asked to attend a performance review meeting that Friday, 13 March 2020. Pastor Barnes agreed but said “I’m not sure what benefit such a meeting will be given that I’ve indicated to you and the rest of the board that I don’t desire to continue.” He asked that they “now discuss an exit plan for myself that minimises division” and proposed that this be the subject of Friday’s meeting. Mr Murdoch then contacted CCVT to assist with the preparation of an exit plan.

[48] On 17 March 2020, there was a meeting between Pastor Barnes, Mr Murdoch, Geoff Needham (another member of the Board) and CCVT to discuss the proposed exit plan. A further request for reconciliation between the two ministers was made. Pastor Barnes was advised that Pastor Tolputt would agree to Christian reconciliation once Pastor Barnes was no longer employed by the Church.

[49] On 30 March 2020, the first COVID-19 pandemic-related restrictions were announced, followed soon after by a period of lockdown. This led the Board to agree, in the middle of April 2020, that it would be unreasonable to expect Pastor Barnes to announce his resignation during the uncertainty of lockdown.

[50] On 6 May 2020, the Church offered Pastor Barnes an amended Position Description as “‘Interim Associate Minister” on account of the pandemic having “interrupted a mutually agreeable resignation process” between he and the Board, and the related need to resume its management review process with Pastor Barnes. Pastor Barnes advised that while he did not “necessarily agree with every aspect of the introduction to” the document, he was happy to work to its outcomes and objectives.

[51] In June 2020, Pastor Barnes advised the Board that he was a candidate for a position at another Church. The Board was separately approached by the other church for a reference. The Board met on 10 June 2020 and the matter was discussed.

[52] On 15 June 2020, Mr Taylor wrote again to the Board about his concerns with the treatment of Pastor Barnes.

[53] On 29 July 2020, there was an ‘exit discussion’ meeting between Pastor Barnes, Mr Murdoch and Mr Needham, supported by notes prepared ahead of time for Mr Murdoch. Pastor Barnes was told a healthy parting from the Church could be achieved by his resigning immediately with 4-6 weeks’ notice and that the Board would support him with a positive mutual statement about his departure. The cost of the bullying investigation was raised and an indication given to Pastor Barnes that if he resigned, the matter would be the subject of “professional discretion”. His work over the COVID-19 period was affirmed as was the Board’s lack of confidence in him as Associate Minister. He was then advised that if he chose not to resign immediately, a process would begin to terminate his employment.

[54] On 5 August 2020, Pastor Barnes wrote to Mr Murdoch acknowledging the need for clarity around his position ahead of September’s Annual General Meeting and asking for two weeks to respond to the issues raised in the exit discussion meeting until 19 August 2020, so that he could consult with family and close friends. The request was agreed.

[55] At some point between 29 July 2020 and 16 August 2020, Pastor Barnes spoke to Mr Taylor about what he should do. He indicated that he was being pushed out from his role as Associate Minister. Mr Taylor asked him for more information. Pastor Barnes sent him a copy of the notes from the exit discussion meeting on 29 July 2020. What he did not tell Mr Taylor was that he was the one who had first raised the prospect of resignation and that he had asked the Board to discuss an exit plan with him in March 2020, before the pandemic took hold. Mr Taylor sent another Board member, Terry Evans, a copy of the notes he had been given by Pastor Barnes.

[56] On 19 August 2020, Pastor Barnes informed the Board that he had been offered a position with another church and that he had declined the offer. Due to a change of heart and a preference to remain in the area rather than move to Melbourne, he said he was glad that he had not resigned and that he declined the opportunity to resign, which he saw as an opportunity to “hide or walk away from” difficulties. “With Christ”, he said, “there is nothing we cannot work through or overcome.” He averted to there being two ways forward for the Church: reconciliation and renewal, or distance and division. He indicated his preference for reconciliation.

[57] On 27 August 2020, a member of the congregation, Peter Chaffey, wrote to Pastor Tolputt expressing concerns about his leadership. Included in his letter was the comment that Pastor Barnes was “feeling pressure from you that his services are no longer required at Church of Christ”. Mr Chaffey advised that he had written a petition for Pastor Tolputt’s removal as senior pastor. Mr Chaffey had previously had issues with Pastor Tolputt’s style, which he felt left other members of the church feeling “picked on, bullied and ostracised”.

[58] At or around this time, other members of the congregation also called for Pastor Tolputt’s resignation. Some expressed concerns about the competence of the Board.

[59] On 30 August 2020, Mr Taylor wrote to the congregation (copying in Pastor Barnes) because he felt that with the deferral of the Annual General Meeting until November, there was no other way to raise his concerns with them. He said in his letter: “Are you aware that the Church Board has asked Pastor Travis Barnes to resign?” He expressed concern about the Board’s treatment of Pastor Barnes. He invited members of the Church to speak with the Board about the matter “in the spirit of faith and reconciliation”.

[60] Pastor Barnes spoke with Mr Taylor after the letter was sent, because he was concerned that Mr Taylor’s letter to the congregation might imply that the two had connived together about the matter. Mr Taylor responded that he had done it on his own initiative because of his concern about what can happen when things are done in secrecy and not made public.

[61] On 31 August 2020, Pastor Barnes was stood down on full pay for a four-week period. A Church service livestreamed on YouTube on 4 September 2020 referred to the stand down as Pastor Barnes not undertaking public ministry for the time being. At around the same time, the Board wrote to the congregation stating that Mr Taylor’s letter lacked context and was inaccurate.

[62] On 9 September 2020, Mr Taylor wrote again to the congregation, disputing that his earlier communication lacked context or contained inaccurate information. He called for the reasons for Pastor Barnes’ suspension to be shared with the congregation and said that failure to do this had led to a lack of trust in the leadership of the Church. He cited the Church’s Constitution, which only permitted a Minister’s appointment to be terminated in a Special Meeting of the congregation, by vote by secret ballot, and if 75% of those votes were in favour of the motion. He noted the exception for “extraordinary circumstances” and expressed the view that this was not such a case. He called for Pastor Barnes to be returned to work.

[63] On 11 September 2020, the Board – no doubt prompted by Mr Taylor’s latest letter to the congregation - wrote to Pastor Barnes to provide more information about the reasons for his suspension. It noted that Mr Taylor’s email had caused much anxiety in the church family and stated that the stand down was both for his “protection from speculation” and to enable it to protect the Church and its reputation while the matter was resolved.

[64] On 14 September 2020, there was a meeting between the Board and CCVT to discuss the matter of Pastor Barnes. It was agreed that a show cause letter would be given to Pastor Barnes to deal with his sharing of information among members of the congregation. CCVT advised that it was satisfied with the direction the Board had taken.

[65] On 16 September 2020, Pastor Tolputt accidentally sent an email intended for Mr Murdoch to Pastor Barnes. The email forwarded the earlier email exchange between the two ministers on 10 November 2018, describing Pastor Barnes’ email as an unprovoked, “ugly outburst”. Pastor Barnes responded to the email, stating that he had forgiven Pastor Tolputt and asking for forgiveness for the frustrated tone of his earlier emails. He again offered to sit down with a mediator to resolve their issues. Pastor Tolputt replied, alerting him to the error in sending the message and reiterating his own promise to seek reconciliation with Pastor Barnes once they were no longer working together.

[66] Also on 16 September 2020, a further meeting of the Board and CCVT was held to discuss a draft show cause letter for Pastor Barnes, the process to communicate this letter including his opportunity to respond, possible responses from Pastor Barnes, and the need for a briefing to the congregation.

[67] On 20 September 2020, a show cause letter was sent to Pastor Barnes. In its letter, the Board sought a response to concerns that Pastor Barnes had:

1. Fabricated the circumstances surrounding his resignation to Mr Chaffey and Mr Taylor, with reference to their letters of 27 August 2020, 30 August 2020 and 9 September 2020, by not telling Mr Chaffey or Mr Taylor the whole story in relation to his resignation; and

2. Caused the fabrication to gain traction in the Church community in order to damage the Board’s reputation, and in doing so, disparaged the Church without factual basis in breach of his employment contract, Minister’s Code of Ethics and Guide to Employment of Ministers.

[68] The show cause letter invited Pastor Barnes to provide information by 4.00pm on 22 September 2020 about:

1. Details of his conversations with Mr Chaffey and Mr Taylor preceding their letters,

2. An explanation as to why he did not tell them the full circumstances surrounding his resignation,

3. An explanation as to why he did not take steps to correct the inaccuracies in the letters about the circumstances leading to his resignation, and

4. Why his employment should not be terminated for misconduct on the basis of extraordinary circumstances, as set out in the Constitution.

[69] On 22 September 2020, Pastor Barnes provided his response to the show cause letter. He did not answer the first three questions posed by the Board. He did not provide details of his conversations with Mr Chaffey and Mr Taylor or explain why he had not given them the full picture or sought to correct the inaccuracies. He simply suggested the Board speak to Mr Chaffey and Mr Taylor about any concerns with their respective actions or behaviour.

[70] Pastor Barnes asked why the issues raised in the show cause letter had not been raised with him from the time he was stood down until the show cause letter. He pointed to a contradiction in the Board’s requests to explain why he did not take steps to correct the inaccuracies in Mr Taylor’s letter, after having earlier instructed him not to enter into conversation about Mr Taylor’s letter with other members of the Church. He denied that he had disparaged the Board or that he had failed to follow his employment contract, the Code of Ethics for Ministers or related guidelines and pointed to the lack of evidence about those assertions in the show cause letter. He said he was not responsible for the behaviour of other members of the Church. He took issue with the assertion that he had offered to resign.

[71] Pastor Barnes suggested that the show cause letter was an attempt to distract from the real issues, being the Church’s failure to inform the congregation about its decision to engage an external investigator to investigate his bullying complaint at a cost of $9850, as well as Pastor Tolputt’s refusal to engage in mediation with him, in breach of the Code of Ethics for Ministers.

[72] Pastor Barnes accused the Board of permitting a breach of the Code by not advocating for reconciliation between he and Pastor Tolputt. He said that to dismiss him would be unlawful and in breach of the Church’s Constitution, because there were no extraordinary circumstances that would permit his immediate dismissal. He cited the need for a resolution of 75% of members at a Special Meeting to terminate a Minister. He set out the implications of dismissal, including that he would apply to the Fair Work Commission for review, that the membership’s confidence in the current board would be irrevocably damaged, that it would mean a breach of the Code of Ethics requiring investigation by the CCVT Professional Standards Committee and all this while Pastor Barnes and his family remained as members of the Church congregation. Finally, he reaffirmed his “love” and “forgiveness” for each member of the Board and for Pastor Tolputt. He said it was not too late for them to advocate for a reconciled rather than a divisive outcome. He urged the Board not to put their name to decisions in breach of workplace law.

[73] A meeting was held via Zoom on 24 September 2020 between members of the Board, CCVT, Pastor Barnes and his support person. Pastor Barnes was told that his employment was terminated on the grounds of serious misconduct. The reasons given were in summary: that he had provided prejudicial and misleading information to Mr Chaffey and Mr Taylor, without legitimate factual basis or authorisation to do so, had undermined the unity of the Church and damaged its reputation, and did not understand the impact of his conduct on the Church community leading to a loss of trust and confidence in his ability to carry out the duties of Minister.

[74] Pastor Barnes was sent a termination letter restating the reasons for dismissal with immediate effect and without notice. The following day, Mr Barnes brought to the Board’s attention his entitlement to 3 months’ salary and allowance in lieu of notice under the Church’s Constitution. This was then rectified by the Church.

[75] On 26 September 2020, the decision of the Board was communicated to members of the Church. Approximately one third of Church members later signed a petition for his reinstatement.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to capacity or conduct?

[76] There are four phases in the deteriorating relationship between Pastor Barnes and the Church that ultimately led to the dismissal. The first was the breakdown of the relationship between Pastor Barnes and Pastor Tolputt from late 2018 until Pastor Barnes announced his intention to resign as Associate Minister in March 2020. The second was the ‘resignation dance’ between Pastor Barnes and the Board over the period from March to August 2020, during which Pastor Barnes clearly stated that he wanted to leave his post, and then changed his mind. No doubt the pandemic, and the different (mostly online) working arrangements over that period influenced the thinking of Pastor Barnes, just as the knowledge that his departure was imminent appears to have eased the tension in the relationship between the two ministers.

[77] The third phase began once Pastor Barnes announced that he had decided to stay. In a small reinvention of history (as resignation had been his idea), Pastor Barnes ‘declined’ to resign and laid out a choice for the Board: reconciliation and renewal (supporting his decision to stay on as a minister of the Church), or distance and division (forcing his exit and suffering division among the Church). This left the Board, which had acted on the basis that Pastor Barnes was leaving and Pastor Tolputt would be resuming full time duties, with a conundrum. What to do with Pastor Barnes, and how best to protect the Church? The Board chose to press for Pastor Barnes’ resignation. It told him that if he did not resign, he would be terminated, although it is not clear on what grounds it would have dismissed Pastor Barnes had it done so.

[78] Things took a turn when Mr Chaffey called for Pastor Tolputt’s resignation and Mr Taylor sought to intervene in the interests of Church democracy – signalling the beginning of the fourth and final phase. This was where the Board became aware that conversations were being held privately between Pastor Barnes and members of the congregation about the difficulties between Pastor Barnes and Pastor Tolputt and the notion that Pastor Barnes was being ‘pushed out’.

[79] The Board was unhappy about what it saw as a breach of confidentiality between it and Pastor Barnes. This was understandable. The position of Associate Minister is a position of significant influence in the Church. A Minister is a leader, a prophet, a speaker of truth. Their words carry weight in the eyes of the congregation. They will be believed.

[80] The Board asked Pastor Barnes for information about the content of his conversations with Mr Chaffey and Mr Taylor because it wanted to know what he had said to them. It wanted to know if the full picture of discussions about his resignation had been conveyed. Pastor Barnes did not respond to this invitation. He flippantly suggested that the Board take it up with Mr Chaffey and Mr Taylor, even though he had direct knowledge of these conversations and their importance to his continuing employment.

[81] Pastor Barnes had been seeking counsel from Mr Taylor over a period of many months. Mr Taylor is a man of integrity and experience, and I can see why Pastor Barnes sought him out. But Mr Taylor was a member of the congregation. And he had his own issues with the Board and Pastor Tolputt. He felt the Board was dysfunctional and that members of the Board were being dominated by Pastor Tolputt. Perhaps they were, but Mr Taylor’s views tainted the objectivity of his advice to Pastor Barnes. His conflict of interest allowed him to be led.

[82] When he sent the letter to the congregation on 30 August 2020, Mr Taylor knew that Pastor Barnes was having difficulties with Pastor Tolputt and was considering leaving the Church. He was a referee for Pastor Barnes’ application for the position at another church. Mr Taylor did not know that Pastor Tolputt’s earlier attempts to reconcile with Pastor Barnes had been rebuffed. He did not know that Pastor Barnes had been talking with the Board about leaving for some time and he did not know that Pastor Barnes had requested the exit plan discussion.

[83] Pastor Barnes had an obligation to Mr Taylor, with whom he was in a pastoral relationship, to act in his best interests and to recognise any potential conflict of interest and take steps to resolve it. It was not in Mr Taylor’s best interests for him to be asked for advice about a complex situation without first giving him the full facts, particularly given Mr Taylor’s views on the Board and Pastor Tolputt. Pastor Barnes was also conflicted. His personal interest in prevailing against the direction of the Board set him in tension with his duty to act in service to the Church. An absence of humility led him to see the two as one, and the steps he took were not steps toward resolution.

[84] In answer to the question of why Pastor Barnes had not sought to correct inaccuracies in the correspondence from Mr Taylor and Mr Chaffey, Pastor Barnes pointed to the contradiction inherent in this question. The Board had instructed him when stood down that he was not to discuss the matter with members of the congregation. The Board now asked why he took no steps to correct misinformation among them. How, he asked, could he have done this without defying the Board’s first instruction? But this was a deflection, because Pastor Barnes had spoken about the matter at least with Mr Taylor, shortly after Mr Taylor’s letter was sent to the congregation. He did not seek to correct any inaccuracies in that letter in the conversation. He simply expressed worry that they might be seen as conniving together.

[85] I accept that Pastor Barnes had a difficult time working with Pastor Tolputt from late 2018 until early 2020. I find that at times, Pastor Tolputt’s interactions with Pastor Barnes were not respectful. Equally, Pastor Barnes was not always respectful toward Pastor Tolputt. Pastor Barnes had strong views about how the youth ministry should be run. Rather than defer to Pastor Tolputt who had different views as his position required, he sought to go around Pastor Tolputt to the Board. When at first Pastor Tolputt sought reconciliation after becoming angry, Pastor Barnes responded with rejection.

[86] While Pastor Barnes never said the words “I resign”, he did say “I don’t desire to continue”. It was reasonable for the Board to understand from these words, and from his conduct in requesting an exit plan and participating in discussions about it, that Pastor Barnes was leaving. The only reason the employment relationship did not come to an end in or around March 2020 was that discussions were ongoing about the timing, and terms, of Pastor Barnes’ departure. Shortly thereafter, the pandemic changed the way Church services were delivered, which in turn changed how Pastor Barnes felt about leaving.

[87] When he announced his change of heart in August 2020, Pastor Barnes put the Board in a difficult position. Its solution to the tension between the two ministers had been that Pastor Barnes was leaving. The Board had already given its commitment to Pastor Tolputt that he would be the Church’s senior minister. Now its solution had evaporated, and the prospect of the old issues re-emerging was revived. The Board pressed Pastor Barnes to reconsider to no avail. Other members of the congregation supported Pastor Barnes and called for the removal of Pastor Tolputt. Pastor Tolputt stood firm, secure in the knowledge that he had the Board’s support. As members of the congregation chose sides, the unity of the Church began to fracture.

[88] I find that the Church had a valid reason for the dismissal of Pastor Barnes because of his conduct in leading Mr Chaffey and Mr Taylor, members of the congregation with whom he was in a pastoral relationship, to believe that things were not as they were. In his communications with the Board, Pastor Barnes repeatedly called for reconciliation. Yet in private, his conversations with other members of the congregation sowed the seeds of division. This was inconsistent with the Code of Ethics for Ministers and it was corrosive of the trust and confidence the Board had in him as Associate Pastor of the Church.

[89] There is, however, a problem. A valid reason on its own was not sufficient to empower the Board to terminate the employment of Pastor Barnes.

[90] Under clause 8.1 of the Church’s Constitution, a Minister’s appointment can be terminated by the Board in three ways:

1. By a recommendation from the Board presented to a Special Business Meeting for endorsement by the Church. The recommendation must be carried by at least seventy five percent (75%) of the votes cast. Voting shall be by a secret ballot over two (2) consecutive Sundays following the Special Business meeting, or

2. At a Special meeting calling for the termination of the Minister. The motion must be carried by at least seventy five percent (75%) of the votes cast. Voting shall be by a secret ballot over two (2) consecutive Sundays following the Special Business Meeting, or

3. By the Official Board, effected immediately, in cases of extraordinary circumstances. Any such extraordinary circumstances must be outlined in the Minister’s Workplace Agreement.

[91] Neither of the first two categories arose. There was no recommendation by the Board to a Special Business Meeting praying for the termination of Pastor Barnes’ appointment, and there was no special meeting called for this purpose. There was no vote of members of the congregation, other than the members of the Board, on the termination of Pastor Barnes’ employment.

[92] Were there extraordinary circumstances, as the third category requires? I accept that there were. The word extraordinary is similar in meaning to the word exceptional. Whether there are exceptional circumstances is an oft-considered question in the Commission. Exceptional circumstances are those that are “out of the ordinary course, or unusual, or special, or uncommon”. 3 The circumstances “need not be unique, or unprecedented, or very rare”.4 The word extraordinary means “beyond what is ordinary; out of the regular or established order; exceptional in character, amount, extent, degree, etc.; unusual; remarkable”.5

[93] Here, the situation faced by the Board was out of the ordinary. It was unusual. It is not every day that a Minister will be found to have misdirected members of their own congregation while contributing to the division among them. The conduct had potential to, and ultimately did, create deep divisions within the Church. Members lost sight of the Church’s purpose as they became entangled in a dispute between two leaders, whose entrenched positions saw them both put their own interests above the interests of the whole.

[94] However, if extraordinary circumstances are to be relied upon to terminate a Ministers’ appointment, they must be outlined in the relevant Minister’s workplace agreement. As far as I can see, there were no such extraordinary circumstances outlined in Pastor Barnes’ workplace agreement. The Church was not authorised to terminate his employment on this basis.

Was the valid reason notified to Pastor Barnes, and did he have an opportunity to respond?

[95] The valid reason for dismissal was notified to Pastor Barnes in the show cause letter of 20 September 2020.

[96] Pastor Barnes responded to the show cause letter on 22 September 2020. He did not take the opportunity to respond in the sense that he did not answer the questions asked about his communications with Mr Chaffey and Mr Taylor.

[97] It is true that Pastor Barnes was not given a further opportunity to respond in the ‘show cause’ meeting on 24 September 2020, before his employment was terminated. But he had already responded to the ‘show cause’ letter in writing.

[98] I am satisfied that Pastor Barnes was given an opportunity to respond to the reasons for dismissal.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

[99] There was no unreasonable refusal to allow Pastor Barnes to have a support person to be present to assist in discussions about the dismissal.

Was the Applicant warned about relevant unsatisfactory performance?

[100] Pastor Barnes was not dismissed for unsatisfactory performance. He had been warned about his interactions with Pastor Tolputt, and a performance review process was underway. As part of the process, clear expectations about Pastor Barnes’ activities in the Church were set out for the following twelve months, including how his performance would be measured.

Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

[101] The Church is of small size but for the reasons I have already described, it forms part of a larger religious body. Through CCVT, it has access to the advice and resources it requires. In my view, the size of the Church did not have a material impact on the procedures followed in effecting the dismissal.

[102] There was no relevant absence of human resources management or expertise. The Church was able to, and did, call upon both legal advice and the advice of CCVT to assist in establishing a fair process to give effect to the dismissal of Pastor Barnes.

Other relevant matters

[103] The difficulties between Pastor Barnes and Pastor Tolputt often arose in the context of Pastor Barnes criticising Pastor Tolputt’s ministry and leadership. Pastor Tolputt did not react well to criticism and allowed his emotions to get the better of him. While I can understand his reluctance to participate in mediation, Pastor Tolputt was obliged under the Code of Ethics for Ministers to seek and participate in mediation when in conflict with Pastor Barnes. In refusing to participate in mediation – and despite his offer of post-employment reconciliation, Pastor Tolputt also fell short of the minimum standards expected of ministers of the Church.

[104] The division between Pastor Tolputt and Pastor Barnes had a significant, deleterious effect on the Church and its members. The division spread among the congregation, eroding trust in relationships and undermining the goodwill that is the essence of church communities. Offerings suffered and Church finances became strained. Some of the Church’s members left or became less active in attending and participating in church activities. As one witness described:

“After John’s letter, the church is a mess. People are very conflicted about what to believe and who to believe. They don’t understand what is happening, are not getting involved, have stopped giving. A lot of broken relationships.”

[105] I do not accept that the Boards’ conduct toward Pastor Barnes was calculated to effect his removal so that it could employ Pastor Tolputt on a full-time basis. The timeline does not support this characterisation of the facts, including because Pastor Barnes had already raised the prospect of his departure when Pastor Tolputt’s increase in hours of work was confirmed. Prior to that time, the issues between the two ministers can best be characterised as genuine professional disagreements about the best way to lead and grow the Church, playing out in the context of a challenge to the established hierarchy and role responsibilities.

[106] The Board’s suggestion that it could treat the matter of the bullying investigation discretely if Pastor Barnes chose to resign was not, in my view, aimed at concealing the cost of the investigation from the congregation. Though it likely strained the finances of the Church, it was proper of the Board to accede to Pastor Barnes’ request that his complaint be taken seriously and investigated impartially. It was important for the Board to know if one of the Church leaders was engaging in bullying behaviour. Allocating funds for this purpose can hardly be grounds for criticism. More likely, the Board’s suggestion of discretion was about preserving the reputation of Pastor Barnes, because his complaint had not been substantiated.

[107] There is also the issue of whether Pastor Barnes was dishonest in his dealings with the Board. On 23 September 2020, board member Linda Bell asked Pastor Barnes to attend the show cause meeting in person the following day. Pastor Barnes said he would be unable to attend as he would not be in Castlemaine at that time, and using past tense, said he had taken the opportunity to get away. He asked for the meeting to be scheduled for the following week. When offered a meeting via Zoom instead, Pastor Barnes responded, saying he would “travel back to Castlemaine” to attend the meeting the following day. Unfortunately for Pastor Barnes, at around that time he was seen by a member of the congregation at his home in Castlemaine. I do not accept Pastor Barnes’ explanation on this issue. In my view, Pastor Barnes was not honest with Ms Bell about his reason for wanting to delay the meeting until the following week.

Conclusion

[108] Most of the circumstances of relevance in this case tend against a finding of unfair dismissal. However, proceeding with the decision to terminate employment in a way that was not authorised by the Church’s Constitution is a matter of significance. It leads me to conclude that in the overall result, and despite a valid reason and an otherwise fair process adopted by the Church, the dismissal of Pastor Barnes was unjust and so, unfair.

Remedy

[109] Reinstatement is not an appropriate remedy. There has been a genuine loss of trust and confidence in the ability of Pastor Barnes to properly fulfil the duties of Associate Minister. Reinstatement will only aggravate existing divisions within the Church.

[110] I am conscious of the submission that a compensation order would be beyond the capacity of the Church to meet, but there is insufficient evidence to support the submission given my finding about the relationship between the Church and CCVT. In my assessment, it is not a sufficient reason to refuse an order for compensation. Compensation is the appropriate remedy.

[111] Pastor Barnes was employed for approximately 2.5 years. It is neither a long nor short period of service.

[112] Had proper process been adopted and members of the Church been given the opportunity to vote, and having regard to the number of petitioners in support of Pastor Barnes and the size of the congregation as a whole, it is likely that a recommendation from the Board to terminate the appointment of Pastor Barnes would have been endorsed. For this reason, I estimate that Pastor Barnes would have remained in employment for a further 4 weeks, ending on the second Sunday after a Special Meeting praying for the termination of the appointment was convened. Over this period, Pastor Barnes would have earned $6228.31 gross.

[113] There is no evidence as to whether Pastor Barnes has taken reasonable steps since the dismissal to mitigate his loss. No adjustment in the compensation amount is made on this account.

[114] Given the state of the labour market and the economy generally, as well as the time that has now passed since September 2020, no adjustment will be made for contingencies. I will leave the question of taxation to the parties and the Australian Taxation Office.

[115] Pastor Barnes was paid three months’ salary in lieu of notice of termination. This payment would also likely have been made on termination of employment at the end of the anticipated period of employment, having regard to clause 8.1 of the Church’s Constitution. No adjustment of the compensation amount is made on this account.

[116] I will adjust the amount of compensation by 20% for misconduct because it was the actions of Pastor Barnes that were the valid reasons for his dismissal.

[117] I will order the Church to pay Pastor Barnes a gross amount of $4982.65 plus superannuation on the compensation amount. I am satisfied that this amount is appropriate having regard to all the circumstances of the case. It does not include any amount for shock, distress or the like. It does not exceed the statutory cap.

[118] The amount will be payable within 28 days of the date of this decision.

COMMISSIONER

Appearances:

T. Barnes on his own behalf.
D. Tolputt for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):
January 12 and 20.

Final written submissions:

Applicant, 4 February 2021.
Respondent, 10 February 2021.

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009 (Cth), s.23.

2 The Churches of Christ in Victoria Property Act 1941, First Schedule, item 2.

3 Nulty v Blue Star Group (2011) 203 IR 1 at [13].

4 Ibid.

5 Macquarie Dictionary Online.

Travis Barnes v Castlemaine Church of Christ