Elford Dube and 9 Others v Awake Grace Ministries

The ten appellants were pastors in the respondent church, having been ordained at different dates from 1994 to 2012. They served at the respondent's various churches around Zimbabwe and South Africa. On 11 June 2019, all appellants were dismissed by letter from Apostle Joyce Gombami, the respondent's senior pastor. The dismissal followed a complaint letter dated 25 February 2019 which the appellants had signed, raising allegations against Pastor Mavondo and Pastor Alam. The respondent found no evidence to confirm the allegations and considered them defamatory. The dismissal letter stated the appellants had arranged a secret meeting against the church constitution, reflecting gross insubordination and disrespect. The appellants received 30% of monthly tithes as allowances, were deployed to various branches, transferred between provinces, required to submit monthly reports, and were subject to the respondent's disciplinary authority. The appellants brought a joint application for review in the Labour Court, arguing unlawful dismissal without charges, disciplinary hearing, or opportunity to be heard. The Labour Court declined jurisdiction, finding no employment relationship existed, and dismissed the application with costs.

• Whether an employment relationship existed between the pastors and the church
• Whether the Labour Court had jurisdiction to hear the dispute
• Whether the pastors were employees or volunteers providing services on a voluntary basis
• Whether the control test and dominant impression test establish an employment relationship
• Whether remuneration in the form of allowances constitutes employment

1. The appeal succeeds with costs. 2. The judgment of the court a quo is set aside and substituted with "The preliminary objection on lack of jurisdiction is dismissed." 3. The matter is remitted to the court a quo for determination by a different judge on the merits.

An employment relationship exists where the dominant impression created by the totality of the facts demonstrates: (1) remuneration (including allowances); (2) substantial control by the employer through deployment, transfers, reporting requirements, and disciplinary authority; (3) subordination of the worker to the employer's authority; and (4) the parties' own conduct characterizing the relationship as employment (such as using terms like "dismissal" and "insubordination"). The court must apply both the control test and the dominant impression test when assessing whether an employment relationship exists. Religious workers such as pastors can be employees where these factors are present, notwithstanding the spiritual nature of their work. Payment of allowances constitutes remuneration under s2 of the Labour Act where paid regularly as part of the employment arrangement. The burden of proving an employment relationship on a balance of probabilities can be discharged where the evidence shows these indicia of employment.

The Court made an observation that if the Labour Court had no jurisdiction to determine the merits of the application, it could not possess jurisdiction to dismiss it, making the order dismissing the application clearly incompetent. This highlights a procedural point about courts declining jurisdiction - they should simply decline jurisdiction rather than proceeding to dismiss on the merits. The Court also noted that the first two preliminary objections raised by the respondent (failure to exhaust domestic remedies and that there were no proceedings to review) were "certainly not well taken", though it did not elaborate on these issues as the Labour Court had already brushed them aside.

This case is significant in South African and Zimbabwean jurisprudence as it establishes important principles regarding the employment status of religious workers. It demonstrates that courts will look beyond labels and titles to examine the substance of the relationship. The case clarifies that religious workers (such as pastors) can be employees if the relationship exhibits the key characteristics of employment: remuneration, control, subordination, and economic dependence. The judgment emphasizes the application of both the control test and dominant impression test in determining employment relationships. It establishes that payment of allowances can constitute remuneration, and that the parties' own characterization of the relationship (particularly in termination letters referring to "dismissal" for "insubordination") is relevant evidence. The case also demonstrates that courts will not readily accept that religious or spiritual relationships are beyond judicial scrutiny where employment law protections may apply.