Insight from our team of leading criminal lawyers: What is happening with Israel Folau? Part 2.

This article concerns employment law and religious expression. In a previous article, we explained the background to the enormous looming court battle involving Israel Folau and Rugby Australia. In case you missed that post, a quick recap is that Folau is one of Australia’s best athletes. He made comments on his social media profiles suggesting that homosexuals (and other sinners) would go to hell.

These comments were interpreted by his employer, Rugby Australia, as being homophobic and Folau’s employment was terminated. Folau has now launched legal action against Rugby Australia and this has raised some very interesting questions surrounding a person’s right to religious expression. In this article, I will be giving an overview of what each side’s arguments are.

Folau’s argument

Folau launched his claim under Section 772 of the Fair Work Act. This Act details all the reasons an employer cannot use to terminate a worker’s contract. Religion is one of them.

So, Folau’s argument is quite simple in principle. He will say Rugby Australia fired him for practising his religion, and therefore the termination was unlawful. Folau argues that he is compelled to communicate the word of God and the messages contained within the Bible, and by doing so he is expressing a loving gesture to others.

The Fair Work Act/discrimination law

However, he accepts that he entered into a contract and code of behaviour with Rugby Australia. But he is nevertheless protected by discrimination law, and in this case, the Fair Work Act. Folau argues that the Fair Work Act protects his right to practice his religion and that Rugby Australia can’t fire him for expressing his religious views.

Football clubs terminate players’ contracts all the time over things that happen off the field. Think of the footy player who gets drunk and assaults someone. Those kinds of sackings are rarely controversial. But that’s clearly a private activity. The club will argue that the player’s contract stipulates that the player can’t engage in that sort of conduct. That’s because it reflects badly on the club. In such a situation, the player can’t fall back on an argument about discrimination, which is the big difference in Folau’s situation.

Many believe that unless Folau’s contract specifically forbade him from posting his religious views online, he will almost certainly win. However, experts in employment law said that this was incorrect. They say that it’s very unusual for a contract to be that specific. This is because they’re generally written in very wide and broad terms, ie. are deliberate. In this way, an employer can catch a whole range of different types of employee behaviour.

Rugby Australia’s argument

After a tribunal found he had breached its code of conduct, Rugby Australia terminated Folau’s contract.  Happening earlier this year, this move was spearheaded by Folau’s with comments about homosexuals. Many businesses have similar codes of conduct. There is a good chance you agreed to follow one when you signed your own employment contract.

Rugby Australia will be arguing that Folau entered into a contract to play for them. This includes being covered by the players’ code of conduct. The code of conduct imposes obligations which are quite typical of many employers these days. For example, engaging in behaviour that is disrespectful or reflects badly on the employer. Their code also talks about not being offensive in the way you engage in public debate.

Below are some of Rugby Australia’s code of conduct. By signing his contract, Folau agreed to:

  • Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in rugby.
  • Use social media appropriately. By all means, share your positive experiences of rugby but do not use social media as a means to breach any of the expectations or requirements of you as a player contained in this code.
  • Do not otherwise act in a way that may adversely affect or reflect on, or bring you, your team, club, rugby body or rugby into disrepute or discredit.
  • Folau also agreed not to “make any public comment that would likely be detrimental to the best interests, image and welfare of the game, a team, a club, a competition or union”.

Rugby Australia could argue Folau’s comments threatened a cost to its fans and sponsors in terms of respect. It could attest Folau tarnished the image of the game when he was supposed to serve as its face. It will certainly point out that CEO Raelene Castle had previously spoken to Folau about his social media use in the wake of an earlier post. That is, back in April of 2018, Folau again said gay people would go to hell. They’ll say that following this conversation, Folau should’ve been aware that his behaviour was not acceptable. By posting again in 2019 he persisted in his offending behaviour.

The unique aspect of Folau’s case:

When it comes to employment law, this kind of dispute is not particularly rare. There are lots of employers that have these codes that regulate what employees can do or say, even in their private capacity. And the courts have often upheld those obligations against an employee. For example, when an employee speaks badly about a manager on Facebook, even as a private citizen, that can be covered by the employer’s quite broadly worded code. It can form the basis for discipline or dismissal. The thing that makes this case unique is also a central part of Folau’s counterargument. It is his religion.

The question that needs to be answered

That conflict, between an employer’s right to impose standards of conduct on its workers and an employee’s right to religious expression, has never been properly tested in court. As far as I’m aware, there isn’t any prior case law dealing specifically with it. Therefore, at trial, the question for the court will be: is it encompassed within the protection of religion that a person is, therefore, able to say whatever they think, or quote from the Bible in any way that they like, publicly, in the way that Folau has done here? This is not an easy question for anybody to answer. Therefore, another article is to follow once this trial has been heard.

Need help interpreting the law, understanding your rights or need more direct assistance? Contact us today to inquire in regard to legal counsel and representation. Cridland & Hua – Your Brisbane Criminal Defence Lawyers.

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