B.C. church must pay pastor more than $80,000 for wrongful dismissal (Legal View)

‘Ad hoc’ committees, performance evaluations weren’t in church bylaws
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 10/05/2015

The British Columbia Supreme Court has awarded a pastor more than $80,000 after he was wrongfully dismissed from a Vancouver church.


The Vancouver Chinese Baptist Church (VCBC) is an 800-member church and society in Vancouver. The church is governed by a set of bylaws that set out how members should lead their lives — “exemplary Christian” — and the process for appointing pastors and dealing with various issues. The bylaws don’t address the procedure for the removal of a senior pastor other than requiring a membership vote.


In late 2010, the VCBC was looking for a new pastor to lead its congregation. In November 2010, it extended an offer of its senior pastor position to applicant Rev. Yiu Chuen Kong, who was living in China at the time. The offer was to start in the position on Jan. 1, 2011, for a 12-month “adjustment period.” After this period, if both Kong and the VCBC determined he was suitable, the position would become permanent. In addition, the VCBC offered to “try every effort to assist you to settle in Vancouver.”


The VCBC had a staff handbook that included a “covenant contract” for pastoral staff that reiterated the one-year period to determine “mutual suitability.” This contract provided for an automatic continuation of employment following this one-year period unless either the church or staff member terminated the employment.


The one-year period elapsed without any problems and Kong became the permanent senior pastor of the church.


Tensions between pastor, others in church leadership

By late 2012, however, tensions arose between Kong and the VCBC’s two associate pastors over managerial and communications issues. The personnel committee met with the deacons and decided to form a small group consisting of two members from each to meet with each of the associate pastors and Kong. 


When the small group met with him, he was told the personnel committee was considering performance appraisals for him and the associate pastors in order to provide feedback to all staff.  Kong felt he shouldn’t be included in such appraisals.

The personnel committee met on Dec. 20, 2012, and agreed to institute performance appraisals for the pastors, including Kong. Concerns were discussed that he had “problems with integrity, honesty and character traits.” 


This also led to a reconciliation meeting on Jan. 12, 2013, that included Kong, the associate pastors, some deacons and certain members of the VCBC personnel committee.


It was decided the personnel committee would establish a monitoring system where each pastor would be talked to regularly over three months to see if the reconciliation was working. It was also determined that each of the pastors needed to continue to work on reconciliation and that observations of their progress would be placed in the confidential file of each.


Kong took exception to the monitoring system and refused to participate in it or any further meetings. He also disputed the personnel committee’s authority to dispense discipline or any other measures regarding his job, accusing them of “false accusations and bullying.”


On May 15, 2013, the two associate pastors resigned, causing much concern within the VCBC membership. Kong sent a letter expressing concerns over how things had been handled, which was shared with the full membership. As a result, a “leaders group” was established to review his suitability to be the senior pastor.


On June 11, the leaders group met with the personnel committee and deacons to evaluate Kong. They reviewed criteria such as character, competency, compatibility, leadership, communication and relationship, and concluded he was “absolutely not suitable to continue to be the senior pastor.” The next day, Kong was told of the decision and that he would be given an opportunity to resign if he wished. The reverend said he would give his answer on June 14.


However, instead of giving an answer, Kong provided a doctor’s note stating he would be “unable to work for the next three weeks due to medical illness.” The church leaders offered to meet with him on July 9 — after the end of the three-week medical leave — to consider any issues he wanted to raise in advance of the full membership meeting on July 14.


On July 4, Kong provided another doctor’s note that said his sick leave should extend for another three months. The church leaders decided to continue with the full membership meeting anyway and invited him to submit a written statement on his behalf.  Kong did not do so and the full membership overwhelmingly voted to terminate his employment at the end of his sick leave on Oct. 4. 


The dismissal was without cause, though some indicated it was because he was not “a good shepherd” for the congregation. Kong was provided with six months’ severance pay.


 Kong filed a human rights complaint, citing discrimination in employment on the basis of age and mental disability, then sued for wrongful dismissal.


The court found the position of senior pastor “is of a special character” that “is a unique type of employment” requiring him to conduct himself in an exemplary manner at all times in leading and managing the church. However, there was no expectation it could be long-term employment — as argued by Kong — because it was contemplated the employment could end after 12 months, though after the suitability period ended, there could be a reasonable expectation of permanence, said the court.


The court also noted that though Kong was older, age was often seen as an advantage for church leaders and he intended to serve as pastor as long as he was able.


Though Kong was only employed by the VCBC for less than two years, the length of the adjustment period showed the “potential difficulty associated with being found suitable and securing a similar senior pastor position,” said the court, particularly since such a position was often filled by word of mouth or recruitment. 


As a result, the controversy around Kong and the hints he didn’t do his job well negatively affected his chances for finding similar employment.


Since the VCBC felt 12 months was necessary for an adjustment period — essentially a probationary period — the court found 12 months should also be an appropriate period of notice of termination. In addition, the VCBC circulated “unproven allegations attacking the social and spiritual worth of Rev. Kong to the VCBC membership” because he had disagreements with the associate pastors and contested the “ad hoc” committees the VCBC formed to evaluate his performance — which were not provided for in any of the VCBC’s bylaws and guildelines. 


As a result, the VCBC was “unduly insensitive” in the manner of his dismissal.


The VCBC was ordered to pay Kong $54,520 — 12 months’ pay in lieu of notice — plus $30,000 in aggravated damages for the manner of his dismissal. The court denied Kong’s demand for punitive damages because “while VCBC’s actions were  unduly sensitive, they were not ‘malicious and outrageous.’”


For more information see:

• Kong v. Vancouver Chinese Baptist Church, 2015 CarswellBC 2150 (B.C. S.C.).


Jeffrey R. Smith is editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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