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Accident Compensation Cases

Gray v Nelson Methodist Presbyterian Hospital Chaplaincy Committee (EMC, 31/05/95)

Judgment Text

GODDARD CJ:
Introduction 
This case has raised questions about the rights and obligations, under employment law, that the Methodist Church and its ordained ministers have against and towards each other. A complicating factor is that the minister in question was not employed exclusively upon the work of the church as by being stationed in a parish, but instead he was employed directly by another employer to work as a hospital chaplain after obtaining permission from the church to make himself unavailable in the meantime for stationing in a parish. That apart, the facts of this case bear a striking resemblance to those which came, not so long ago, before the Ontario Court (General Division) in Davis v United Church of Canada [1992] 8 OR 75. In the opening two sentences and the concluding paragraph of his judgment, Greer J said: 
“God’s servants, the Reverend Ross Davis and the Reverend Jack Hobbs, two United Church ministers, were not served well by [organs of] the United Church of Canada as they applied the provisions of the United Church Manual in separate sexual harassment actions brought against the ministers. It was a long, arduous process which each of the ministers went through and in the end, the rules of natural justice were sorely breached by all the respondents in their treatment of these two ministers. 
The duty to act fairly in any administrative proceeding is a high duty of care to follow. If this duty is breached, it is tantamount to saying that a person is guilty until proven innocent. The proceedings outlined in the Manual are administrative and disciplinary in nature and therefore the Presbytery and the Conference in the Hobbs and Davis matters had a duty to act fairly towards them. Given the nature of the complaints against the ministers, I am not unmindful of the anxiety which the church must experience in attempting to deal with them. On the other hand, the church may wish to consider reviewing the terms of its sexual harassment procedures and consider providing pastoral charges with further guidelines regarding steps to be taken when such a complaint arises. Ministers should simply not be thought guilty until proven innocent. They must be considered innocent until the complaints can be investigated and the charges laid against them proven or found false. ”
The resemblance between the Canadian case and the case now before this Court for decision is more than superficial. There, as here, the case arose out of an allegation of sexual harassment against a minister by a parishioner; there, as here, there was resort to novel procedures especially devised for dealing with such allegations; there, as here, there was a complaint by the minister about the way he had been treated by his church in the process. There are differences as well. For one thing, counsel for the plaintiff does not wish me to describe her client as a servant of God but would rather I called him an employee of the church. Another difference is that while the Canadian church went through the motions of holding a formal trial of sorts, the church in the case before this Court did not trouble even to put its minister on trial but purported to remove him by executive action. It then told his direct employer that he was no longer entitled to officiate as a minister and invited the employer to bring his employment as a hospital chaplain to an end. It tried to lend a helping hand by pressing the minister to resign from that employment. 
That the Methodist Church did these spectacular things is not just surprising. It is truly amazing. The constitution of the church requires all those who belong to it to accept the discipline and the polity of the church, an immutable part of which guarantees to every minister a right to a trial and to a series of appeals in church courts before, and as a condition of, being turned out of his or her ministry. It is unfortunate that the hierarchy of the church did not observe their own obligation patiently to accept the discipline of the church in this important respect. The explanation for what I am confident is uncharacteristic behaviour on their part is, of course, the same as it was in the Canadian cases — an understandable but ill-directed anxiety to demonstrate the will of the church to respond firmly and decisively to a complaint of sexual harassment from a parishioner. Unfortunately, through their enthusiasm to be seen to act and, it is fair to add, from a sense of indignation in anticipation of the complaint being well founded, senior officials took it for granted that it was and in both these ways lost sight of, and sacrificed, the plaintiff’s rights. 
In the Canadian case the Court felt able to quash the decisions of the church courts without extensive discussion. So straightforward an answer is not readily available here because there are three and not just two parties to this case, because there are multiple causes of action instead of a single one, and because this Court is inhibited by statutory limitations upon its jurisdiction, the boundaries of which need to be carefully identified in order to ensure that they are not transgressed. This case presents a number of other problems as well which were not evident in the Canadian case, the most glaring being that the new sexual harassment procedures had not yet come into force in the New Zealand church. 
I was told that the Court’s answers to the questions posed by this case are going to be of great importance to the plaintiff, to other ministers of the Methodist Church, to its congregants, and to the Church itself. Mr Smith, leading counsel for the Church, went on to express the hope that it would not be necessary for him to discuss the same problems with the Court for a second time. One of the dilemmas posed for resolution by the Court, as I have hinted, is whether it — or indeed any Court — has jurisdiction to adjudicate in contract or by way of review as between the plaintiff and the church but I took Mr Smith to mean more by his observation about the educative aspects of this case than that it would discover the limits of the Court’s jurisdiction in relation to religious organisations in New Zealand. If I find that the Court lacks jurisdiction, I propose nevertheless, where and so far as appropriate, to say what I make of the merits of the case in the hope that it may be more helpful to the parties for me to do so than to maintain an inscrutable silence. I am persuaded to proceed in this possibly unusual way because the church is but one of two defendants and there is no doubt about the Court’s jurisdiction in relation to the other defendant in respect to which a focal issue in the case between it and the plaintiff is whether the Methodist Church has properly removed the plaintiff from his ministry. In addition, the plaintiff has a cause of action against the second defendant in tort which is not assailed by any doubts of a jurisdictional nature. This cause of action, too, involves an examination of the propriety of the second defendant’s conduct towards the plaintiff. 
The parties 
The plaintiff is 54 years old. On 3 November 1984, following some years of training at St John’s Theological College in Auckland, he was entered on the List of Presbyters in Full Connexion with the Conference of the Methodist Church of New Zealand (and so became, possibly among other things, a member of the church entitled to attend, speak, and vote at the Conference). The following day, as his Certificate of Ordination testifies, he was duly ordained by prayer and the laying on of hands as a fully accredited Minister of the Christian Church. As such, he was taken to have accepted a call to a life-long commitment to the study of scripture, preaching, administering the sacraments, pastoral care, and service in the community. 
The first defendant is the Nelson Methodist Presbyterian Hospital Chaplaincy Committee (“NMPHCC”). As is common ground between the parties, it is the plaintiff’s current employer. It receives funding for its activities directly from the Interchurch Council on Hospital Chaplaincy (which, in turn, derives its funds under contracts with regional health authorities) and from religious charities, including local parishes of both churches, but not including contributions directly from the Conference of the Methodist Church, the second defendant in this case. This distinction is made only in the interests of accuracy and not because it has any particular legal significance, however important in practice; in my understanding, while Methodist parishes enjoy a large degree of autonomy, their funds are under the ultimate control of the second defendant. 
The second defendant as named is the Conference of the Methodist Church of New Zealand but is, to all intents and purposes, the Methodist Church of New Zealand, an unincorporated voluntary association. It can be said to be a society of people, more precisely a congregation of protestants, calling themselves Methodists, and who number in New Zealand approximately 15,000. They are governed by their own canons known as the Laws and Regulations of the Methodist Church of New Zealand (sometimes called the law book or simply the laws). Their supreme governing body is the Conference which convenes only once a year. When it is not sitting, its powers are vested in the president of the Methodist Church. The Conference, although the supreme administrative, legislative, and judicial organ of the church, is subject to checks on its powers. In particular, in terms of the laws, it has no power to do away with the right of trial and appeal of members and ministers of the church. The right of trial and appeal of ministers is laid down in exquisite detail, in part no doubt as a buffer against the divisions and conflicts that history shows can sometimes arise in even well-intentioned religious fellowships of which I readily accept the Methodist Church to be one. 
From parish ministry to hospital chaplaincy 
In 1988 the plaintiff was appointed by the Methodist Church to parish ministry in Timaru. The more usual term for that in the Methodist Church is stationing. He and his family took up residence in a parsonage attached to a parish church. In early 1992 his parish council offered him a further 3 years’ tenure from February 1993 and, although he accepted this, he made it known that he was at the same time looking at the possibility of a move away from Timaru. He said in evidence that he saw such a change as what he called an opportunity to break a cycle of demand by a person in Timaru. That person, a married woman of mature years, would later turn out to be the instrument of his undoing. He applied to the Conference for stationing elsewhere. He also applied for a hospital chaplaincy. He applied for it to the first defendant, the NMPHCC, not to the second defendant, the Conference. 
He was successful and was duly appointed by the first defendant. He moved to Nelson and took up his duties on 1 September 1992. There was no free parsonage going with this post. The plaintiff withdrew his accumulated credit with the church registered superannuation scheme known as the supernumerary fund, receiving $30,000 in cash, and, together with his wife, borrowed a further $80,000 to buy a house in Nelson. He was then permitted to rejoin the fund. He signed an employment contract with the NMPHCC. It was not for any fixed term but, rather, was terminable by 3 months’ notice on either side, and summarily by the employer for serious misconduct. The remuneration specified is the current rate of stipend for Methodist clergy and listed allowances “as per Methodist scale”. Immediately above the plaintiff’s signature on the seventh page of the contract appears this acknowledgment by him: 
“I further understand that notwithstanding anything contained in the documents relating to my appointment as Chaplain, I am still subject to the Rules, Canons or other Regulations pertaining to the discipline of my denomination. ”
One of the general conditions also states that hospital chaplains are expected to maintain their denominational links and participate in that life to the extent that their employment allows. Although it is nowhere expressly stated that the chaplain for the time being must be an ordained minister of either the Presbyterian or the Methodist denomination, there is an underlying assumption in several provisions of the contract that the chaplain will be in a position to administer last rites to the dying, conduct their funeral obsequies, and fulfill liturgical functions (including marriage ceremonies) for the living and generally (and this is stated in the contract) to provide “a Christian Ministry of the highest quality”. When the position was advertised, the job description required applicants to be “ministers in good standing in their own denomination” (which the plaintiff was at the time, beyond argument) but no requirement to remain in this state was expressly reflected in the contract. As is required by law, the contract contains dispute and personal grievance procedures. Another important feature is the first defendant’s contractual undertaking to be a good employer. The contract contains no express provision empowering either party to suspend performance. 
The complaint by a parishioner 
The plaintiff was still a hospital chaplain employed in Nelson by the NMPHCC in 1994 when the events occurred which are the subject of this case. The initial steps were strictly between the second defendant and the plaintiff, and the first defendant did not enter the picture until the end of August. It would be more logical at this point to continue the detailed account of the facts by referring to the relevant provisions of the law book of the church and of the sexual harassment/abuse procedures embraced by the church, but that would postpone the narrative of events for a dozen or so pages. Reluctant to do so, I have relegated to appendices descriptions of these important documents, but the material there contained should be seen as an integral part of this judgment. All I need to say for now is that the sexual harassment/abuse procedures (Appendix 2) were not yet in force at any material time and so could not properly have been applied to the plaintiff (except with his consent, but it is not even faintly arguable that he gave informed consent). There are also questions about whether the procedures were applied correctly, but since they did not apply at all, these additional complaints do not arise for decision. The law book provisions (Appendix 1) show clearly that the plaintiff had a right to be tried before he could be disciplined and that no one could take this right away from him. The law book provisions are relevant for a second reason: they include strongly worded statements proclaiming the status of ministers to be something different to that of employees. 
In March 1994, officials of the second defendant received a complaint from the female parishioner in Timaru. As conveyed to the plaintiff, the complaint was said to be that, over an extended period, the plaintiff had had a long-running sexual relationship with her which she said she had found to be damaging and hurtful to her. The officials, acting under new sexual harassment procedures that were in the course of being introduced, but were not yet in force, advised the plaintiff of the fact, but not the details, of the complaint (they did not send him a copy of the letter of complaint) and inquired whether he would agree to a mediation under the new procedures (implying that they were in force) between him and the complainant. He said at once that he would. The mediation followed, and resulted in a settlement between the plaintiff and the complainant, the terms of which were reduced to writing by the mediator. He then passed the document on to the officials of the church who had retained and paid him and they in turn reported the matter to a standing committee of the Conference of the Methodist Church called the pastoral committee. The plaintiff was distressed by the way in which the mediation had been handled and complained to the general secretary of the church. 
I believe that it is fair to say that deep concern is warranted for the lack of clarity in advance of the mediation about the subsequent use of any document evidencing a settlement as between the complainant and the plaintiff. A situation was allowed to develop of a waiver of confidentiality, however limited, being extracted from the plaintiff as part of the terms or price of settlement. The settlement document, divorced from its context, was extremely damaging to the plaintiff. In the very nature of the mediation process, the parties to it may feel able to find some accommodation including a form of words that satisfies them both without intending to accept any legal or moral responsibility. The texture of the language and tone used in the outcome paper suggests that this was so in this case and that the parties, as often happens, may well have agreed to a result that is unlikely to have emerged from Court proceedings or other structured procedures of a strictly legal or formal nature. The intimacy of mediation and the strong encouragement to the parties to concentrate on reconciliation and to shun contradiction may have led, by the application of the mediator’s skills, to the plaintiff being magnetically drawn into discussing and even admitting responsibilities the very existence of which he might have disputed under other conditions. The parties to a mediation have an expectation of being able to speak freely without the fear of being later bound in another forum by what has been said perhaps incautiously in the interests of settling a claim of unclear scope and uncertain strength. After all, the settlement between them is no more than a private contract. Its terms are not logically useful for other purposes and, if the policy of the church is that such settlements are to be encouraged, it follows that their use as evidence of admissions of liability or responsibility ought to be discouraged. 
The second defendant did nothing to investigate or inquire into the parishioner’s complaint and failed to disclose to the plaintiff that, on the strength of the parishioner’s complaint, it was harbouring a complaint of its own against him not or not merely that he had conducted a sexual relationship with a woman other than his wife but that he did so while in a pastoral relationship to the woman, thus committing in its view an abuse of his power or position. The plaintiff never sought to deny the relationship (while stressing that it never progressed to intercourse) but disputes that it was abusive, at any rate on his part, and may well have withheld his agreement to mediation or taken legal advice earlier and otherwise conducted himself differently in his own interests if this allegation had been put to him from the outset. 
In the course of complaining to the church about the mediation, the plaintiff supplied a letter from a Mr Burke Hunter. Mr Hunter is the plaintiff’s psychotherapist. The letter had been obtained by the plaintiff originally for the purposes of the mediation, but the mediator refused to receive it. In it, the therapist confirmed that he had been counselling the plaintiff for some time in connection with the consequences of his having been the victim in his youth of sexual abuse practised upon him by a female adult. Mention was made of the possibility “for a man to be sexually abused by a woman if that abuse duplicates what occurred in his initial childhood abuse”. The counsellor disclosed that he was aware that the plaintiff “had been sexually involved with a parishioner” and spoke of “circumstances of close parallels between what happened sexually with the woman parishioner and what happened” between the female adult and the plaintiff. Mr Hunter concludes: 
“This statement is not to condone what Robin has done. He is aware from the counselling that we have done of his responsibility in the woman feeling abused by him. He has read Sex In the Forbidden Zone by Peter Rutter and understands abuse of clients by men in positions of power. The statement I am making is to shed light on some of the complexity in this case. ”
Sequels to the mediation of the complaint 
As stated the mediator reported the result to church officials who reported to the pastoral committee. As a result, the plaintiff next received a visitation from the president of the church, ostensibly as chief pastor, but in reality in consequence of the deliberations of the pastoral committee and with a view to persuading him to give up his ministry. This followed close on the heels of a letter from the church indicating an intention to take further proceedings against him based on the mediation outcome paper and further unrelated inquiries then in progress. The president soon afterwards, in response to the plaintiff’s complaints, made an offer of a meeting with a deputation from the pastoral committee. 
The plaintiff accepted, and the meeting took place. A later meeting of the full pastoral committee, without prior notice to the plaintiff or giving him any opportunity to defend himself, considered his fitness to remain in the ministry upon the basis of the mediation outcome and a report (which the plaintiff had had no chance to see, hear, or contradict) on what had been perceived to emerge during the plaintiff’s complaint to the smaller meeting. The pastoral committee reached a conclusion adverse to the plaintiff. 
On 29 August 1994 the president, in the name of the Conference, and acting on the advice of the pastoral committee and possibly other advisers, removed the plaintiff’s name from the List of Presbyters in Full Connexion with the Conference of the Methodist Church of New Zealand. He gave no advance notice to the plaintiff of his intention to consider taking this grave step or of the grounds for doing so, nor did he give the plaintiff any opportunity to answer the complaint that the church had against him. The following day the Conference sent two senior members of the pastoral committee as emissaries to advise the NMPHCC that the plaintiff had been removed from the List of Presbyters in Full Connexion with the Conference of the Methodist Church of New Zealand. They indicated at the time a strong expectation that this should immediately have some consequence for, and influence upon, the plaintiff’s ability to continue as a hospital chaplain. They next conveyed the same message to the plaintiff and requested his resignation from both the ministry and the chaplaincy, adding that his removal from the list did not depend upon his resigning. Later the Conference resiled from its demand, resisted in any event by the plaintiff, that he should resign from the chaplaincy. 
The damage had by then been done. As will be seen, the first defendant, while insisting that the Conference had no authority to dismiss the plaintiff from employment with it, in effect suspended him (formally, it decided without seeking his consent or views to place him on leave) to enable the committee to work out the implications of the actions of the Methodist Church. Initially the suspension was for a month and initially it was on full pay, but it has been progressively continued or extended. Payments have been reduced in amount to the extent where currently the stipend only is being paid but not other substantial portions of the remuneration known as allowances except the housing allowance which alone continued to be paid. Employer contributions to the supernumerary fund were discontinued or suspended. It is only fair to say that the first defendant has otherwise endeavoured scrupulously to comport itself correctly towards the plaintiff and, beyond suspending him on these terms, has taken no more drastic or terminal step against him. Originally it awaited the outcome of action being taken by the plaintiff within the church, more latterly the outcome of these proceedings. It knows nothing against the plaintiff, and is not in a position to verify or even investigate the plaintiff’s alleged conduct or to assess its gravity. So far as it is concerned, according to the evidence (which I do not hesitate to accept) of its chairperson, Mr H D Kirton, a former District Public Trustee, now retired, the plaintiff carried out his duties satisfactorily until May 1994 when he was affected by stress and became unable, for a time, to continue working. This setback was overcome after the end of June, and from then on the NMPHCC had no reason to think that more trouble was brewing for the plaintiff until approached by the second defendant on 30 August. 
The position of the church was immediately afterwards put formally in two letters dated 1 and 2 September to the plaintiff and the first defendant in turn. They are crucial pieces of real evidence and must, despite their length, be allowed to speak for themselves. The first was to the plaintiff: 
“I write as General Secretary of the Methodists Church at the request of the Pastoral Committee and the President. The context of my letter is best set out in the Report ‘Dealing with Sexual Harassment/Abuse in the Methodist Church’ adopted by Conference in November 1993 and set out on pages 285-300 in the Reports and Resolutions of the Annual Conference, 1993. 
Pastoral Committee in May received a report that there had been a complaint against you and that the procedures as set out have been followed. You, yourself will be aware of the name of the Complainant and the place and details of the events which were the subject of mediation. To protect the privacy of both parties, Complainant and Respondent, these were not shared with the Pastoral Committee. It received the information that there had been a formal complaint of persistent inappropriate behaviour that took place over a three year period while you were Parish Minister to the Complainant and that the complaint was considered to be high level rather than low level. It received a letter from Burke Hunter, shared at your request. It was also informed that it was your intention not to return to Parish ministry. The Committee affirmed your recognition that it was inappropriate for you to continue in Parish ministry. 
Pastoral Committee at that stage asked the President and Vice-President to meet with you and Ann and to ask you to consider the implications of these events for your work as Hospital Chaplain recognising that in the hospital setting there are care giver/care receiver relationships equivalent to those in the Parish situation. President Mervyn Dine visited you after this meeting. Subsequently you met with four members of the Pastoral Committee in Christchurch. Mr Tim Harley was present as your support person. 
When the Pastoral Committee met this week it received reports on the two meetings, a letter sent on your behalf by Mary Jerram and written material which you provided to illustrate the type of recording and monitoring procedures you have put in place in the Chaplaincy situation. It received those reports and directed their attention to the central question: Is it appropriate for a Presbyter in Full Connexion, who over a number of years has breached professional boundaries in the area of sexual harassment/abuse, to continue as a Presbyter in Full Connexion? After careful discussion, the Committee reached two conclusions: firstly that there is no distinction which it can draw between ministry in a Parish context, a Chaplaincy context, or indeed any other context; secondly that it is not appropriate for the Methodist Church to allow you exercise any form of Ministry as a Presbyter in Full Connexion with the Methodist Church. 

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