THE INDUSTRIAL TRIBUNALS
CASE REF: 407/04
APPLICANT: Shivendra Nath Shukla
RESPONDENTS: 1. Tilak Rajpuri
2. Mukesh Sharma
3. Nisha Tandon
4. Ray Parmar
5. Indian Community Centre
DECISION
The unanimous decision of the tribunal is having first decided to receive evidence and submissions from the respondents as to jurisdiction despite the absence of the applicant or anyone appearing on his behalf, the tribunal unanimously concluded that it did not have jurisdiction to consider the applicant's case that he had been unfairly dismissed as a Hindu priest by the respondents. The tribunal therefore accepted the respondents' submission that his appointment was a spiritual one, not subject to obligations under civil law.
Appearances:
The applicant did not attend and was not represented.
The respondents were represented by Mr Dunlop, Barrister-at-Law, instructed by Messrs Carson McDowell, Solicitors.
- The applicant had, by faxed letter dated and received 24 March 2005, indicated that because of his Temple commitments in England, he would not be attending the hearing on 30 March. He further indicated that he wished what he referred to in that letter as "the case" to be considered in his absence.
- The tribunal was informed by counsel on behalf of the respondents that his absence would not prejudice or disadvantage them in the event that the tribunal decided to proceed to deal with the preliminary issue of jurisdiction.
- In view of the fact that the applicant and the respondents had no objection, the tribunal decided to proceed.
- Evidence was given by Mr Sharma, one of the named respondents. He is President of the Indian Community Centre (ICC) in Belfast. He described the role of the applicant as a
priest within that Centre, and emphasized that this was a spiritual role, giving details of the various weekly religious ceremonial duties expected of the applicant. There also were various aspects of his work which might be described as pastoral care, including the performance of funeral services and other ministry to the members of the Hindu congregation. His duties also included cleaning in the temple, to ensure that it met the standards of cleanliness required by the Hindu religion for places of worship.
- Mr Sharma produced three documents. The first was headed "Contract/job description for a priest for Laxmi Narayan Mandir", which he stated was not a contract as such but had been drawn up by the ICC in Belfast because there had been an unfortunate history in Belfast of priests not complying with the need to give three months' notice. He stated that because priests are paid in accordance with the size of the congregation, the small number of Hindus in Northern Ireland means that priests are hard to attract, and leave if a better-paid ministry becomes available outside Northern Ireland.
- He also produced the original letter in Hindi to him from the applicant, indicating that he wished to leave, together with its translation into English. This translation had been made at the time of its receipt (i.e. before any proceedings were anticipated) by Mr Puri, another respondent, which the tribunal decided to accept. The translation made no reference to the later allegations, and includes the following: "I would like to give three months' notice to go away from the ICC … I want to be relieved of the services/position of priest … I want to leave forever". He also states that his plan was to go to India, which Mr Sharma stated in evidence to mean that he wished to advance his studies there.
- Mr Dunlop, on behalf of all the respondents, relied upon the Scottish case of Percy 2001 SC 757, involving an allegation of sex discrimination against the Presbyterian Church in Scotland. The tribunal considered that judgment carefully, and, whilst it is not of binding authority, because the legislation, namely the Employment Rights (Northern Ireland) Order 1996, is silent on this point, the tribunal unanimously felt that the case law presented was relevant and persuasive.
- Whilst there existed in this case the document headed "Contract/job description", the tribunal concluded that this should not be viewed as a contract of employment as such. It equally could be viewed, as stated by Mr Sharma, as merely serving to clarify the nature of the duties to be undertaken by a priest in the ICC Hindu Temple. Whilst there were rights and obligations, the tribunal felt that these arose from a relationship which was, and was clearly understood by both parties to be, the functions of a priest ministering to the Hindu community, not as one of employer and employee or worker.
- The tribunal therefore accepted Mr Dunlop's assertion that the analogies between the present case and the Percy case were relevant, in that where such an appointment is made to a recognised form of ministry within a church and where the duties would be essentially spiritual, there is a rebuttable presumption that there is no intention that the arrangements would give rise to obligations in the civil law.
- There was no evidence given by or on behalf of the applicant, but even without his presence or contribution, the tribunal's own enquiries from the evidence, the legislation and the case law produced by counsel for the respondents, yielded nothing which would seem capable of rebutting the presumption in Percy.
- For those reasons, the tribunal concluded that it did not have jurisdiction to deal with the complaint made in this case.
Chairman:
Date and place of hearing: 30 March 2005, Belfast.
Date decision recorded in register and issued to parties:
