Among the first things we consider in my Employment Law course is “what is an employee” and when is an employment contract created?
When I ask someone to build a deck in my backyard, am I entering into an employment contract with him, or some other form of contract? Is an 
intern an employee? Can the intern sue a business that took her on to do work?
Whether a contract is created, and if so, whether that contract is an ’employment’ contract matter greatly in our legal system. A worker can only sue for damages if there was a legally enforceable contract entered into. They can only make claims for employment regulation benefits if they became an ’employee’ as defined by our employment laws.
So I was interested in an odd little decision from Ontario released last month dealing with the question of whether a nun residing and performing work in a monastery can sue to recover monies for work she performed while residing at the monastery. The case is called Ivantchenko v. The Sisters of Saint Kosmas Aitolos Greek Orthodox Monastery.
Here is a Toronto Star piece discussing the case.
The nun (Ivantchenko) filed a lawsuit alleging constructive dismissal (among other claims, including a variety of torts). She is seeking notice of termination (back wages), among other remedies. Only an employee can be constructively dismissed. While residing as a nun in the monastery, she performed a variety of tasks including sewing.
This was a decision on a summary judgment motion brought by the Defendants. That is, the Defendants argued that the court should dismiss the lawsuit without a trial because the nun is not an employee and no contract was entered into. They argued that:
Ivantchenko was not hired, or employed, by the Monastery. She entered into the Monastery voluntarily with the awareness that she would not receive any pay or income, or salary of any sort, and would be in the service of God and her fellow sisters. At no point in the 14 years that Ivantchenko was residing at the Monastery did she ask for pay of any sort, or complain at any time that she was not receiving pay.
That claim sounds like something employers say when they try to explain why workers they call “unpaid interns” are not employees, and therefore not entitled to minimum wage and other employment-related benefits (other than the God part, that is). Often that argument fails in the case of interns, as I have noted before, because courts look past how the parties characterize the relationship and apply a series of tests to determine if a worker looks more like an employee, or more like something else (like a person receiving an education, or an independent contractor).
Should the situation be different for nuns?
The court here refuses to grant the summary dismissal. It rules that there was not enough evidence presented to establish the nature of the relationship, and therefore the facts need to be sorted out at trial. However, the Judge does hint that he is troubled by the case, because courts are usually ill-equipped to interpret religious rules and culture, and therefore the risk of a court imposing an inappropriate rule on a religious organization is high. He says that courts should be very careful in wading into internal religious disputes.
On the other hand, the courts cannot stand back and allow violations of civil, legal rights to be trampled upon under the guise of religious freedom. Should every person who performs work inside a monastery be outside the boundaries of employment law, or just some? Should a religious organization be permitted discriminate against people who do not share their faith? Where to draw the line between religious freedom and secular legal rights is a controversial and difficult one. However, someone needs to answer these sorts of questions.
What do you think? Should the nun be entitled to employment-related benefits and contractual rights?
Or did she forfeit those rights when she walked into the Monastery?
A requirement of legally enforceable contract is ‘the intention to create legal relations’. Do you think that the monastery intended to enter into such a contract with the nun?