Israel Folau is claiming that Rugby Australia unlawfully sacked him because of his religion. The organisation, however, contends the rugby star violated the terms of its code of conduct by discriminating against LGBTQ people.
Former Wallabies rugby star Israel Folau is the latest in a series of Australian employees to lose their jobs because of social media posts in recent years.
Through a combination of common law rules and broadly expressed codes of conduct, employers have increasingly been able to control their workers’ private activities, including on social media.
But what makes Folau’s case different is that it sets up a clash between employment contract law and legal protections against discrimination on the basis of religion.
This could set an important employment law precedent for future cases like this, which is especially contentious at a time when religious freedom is being so fiercely debated in Australia.
(Photo by Mark Kolbe/Getty Images)
What claim has Folau brought?
Rugby Australia terminated Folau’s employment contract last month after a tribunal determined his actions had breached the organisation’s code of conduct. The offending behaviour was an Instagram post by Folau in April, warning homosexuals (among others): “Hell Awaits You. Repent! Only Jesus Saves.”
Folau has now brought a claim under Section 772 of the Fair Work Act alleging the termination was because of his religion and, therefore, unlawful.
The application argues that as a manifestation of his Christian religion, including regular church attendance and preaching, Folau is:
…compelled to communicate the word of God and the message contained within the Bible.
According to media outlets, he is claiming around A$5 million in lost salary and an additional A$5 million in compensation for other missed opportunities, including sponsorships.
What the Fair Work Act says in cases like this
Rugby Australia maintains that Folau was dismissed not because of his religious beliefs, but because he breached the player code of conduct.
The code is typical of that of many businesses. It requires players to treat everyone equally and with dignity, regardless of their sexual orientation; not to use social media to breach expected standards of behaviour; and not to make public comments or otherwise act contrary to the best interests of the game.
What makes Folau’s claim unique is that it depends on the court’s view of whether he was dismissed for reasons that included his religion, as specified under Section 772 of the Fair Work Act.
This claim could be easier for Folau to prove than another part of the Fair Work Act commonly relied upon in discrimination cases, Section 351.
Case law tells us that Section 351 requires the employee to prove an employer was motivated to discriminate against him or her because of religion. So, if an employer can point to an employee’s breach of their employment obligations as the reason for dismissal – instead of a discriminatory motive – then the employee’s claim fails.
In contrast, under Section 772, Folau only has to show that his religion was merely among the reasons for the dismissal.
However, in order to make his case, he will also need to demonstrate that his Instagram post constituted an exercise of his religion.
There are some big questions to be resolved here: how far does a person’s right of religious expression extend? Does being a Christian necessarily mean you can express the views of your faith in any public forum?
And does it allow Folau to express his views in the way that he did (noting that he says he was simply quoting from the Bible)?
(Anthony Au-Yeung/Getty Images)
Are there any precedents in case law?
Discrimination law doesn’t help us out much here.
Various state and territory laws protect a person from being discriminated against due to religious “belief”, “conviction” or “activity.” However, the case law shows that only certain characteristics of those who observe a particular religion fall within these protections, for example, a Hindu who practices fasting, or a Sikh wearing a turban. Previous cases haven’t dealt with the question of speech associated with a person’s religion.
For further guidance, we can turn to cases involving an employee’s right to express political opinions. But here, too, we find a bit of a mixed bag.
Academics seemingly have more latitude to express political opinions because their free speech rights are backed up by “intellectual freedom” clauses found in most university enterprise agreements.
This enabled former James Cook University physics professor Peter Ridd to successfully contest his dismissal for public comments critical of climate science. Academic freedom was also behind the claim mooted by La Trobe University’s Roz Ward, who was suspended in 2016 for social media comments criticising the “racist Australian flag,” before the university eventually backed down.
By comparison, federal public servants are subject to very restrictive policies curtailing their free speech rights.
However, the case of former Department of Immigration official Michaela Banerji shows that public service employees may be able to rely on the implied constitutional freedom of political communication. She won a workers’ compensation case on the basis that her dismissal for anonymous tweets criticising government policies breached her constitutional rights. The federal government is now contesting that ruling in the High Court.
New territory for employment law
Outside the academic and public sector contexts, we don’t yet have a definitive ruling on the apparent conflict between an employer’s right to control employees’ social media comments and the protections of religious or political freedom found in discrimination law.
Many of these cases settle out of court, such as Angela Williamson’s claim against Cricket Australia for unfair termination following tweets she sent that were critical of Tasmanian government policy on access to abortion.
It’s highly likely that a settlement will be reached in the Folau case, as well. But if it does go to trial, I think the employer’s contractual right to impose standards of behaviour will trump the rugby star’s right to express his religious views.
Court rulings have tended to favour employers seeking to enforce their behavioural policies and codes, including the regulation of employees’ private activities. The Folau case is an important opportunity to see whether the right to express religious views can halt the steady march of employer control in the era of social media.
Written by Anthony Forsyth, Professor of Workplace Law, RMIT University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
John Burgess
Guest
The issue is not what society thinks it is what God thinks and he condemns homosexuality because it is offensive to Him and he warns those who live the lifestyle that there is a consequence. What modern society chooses to do in its total disregard of the Holiness of God will not change the outcome. Sin will take you to hell.
Dave from Mt Druitt
Guest
We are continually told that this is due to the freedom of speech on religious grounds but there is a claim for $10m for losses of earnings. Should what it is Mr Folau? Protection of your faith or just a grab for money? The request for people to fund your claim exposes your real purpose.
Kashmir Pete
Roar Guru
GoSWS We demur on some points there :-) As they say in Argentina 'no problomo' - I have that translation on good authority from Nobes. ;-) Cheers KP
GoGWS
Roar Guru
Fair enough i guess. I used to be further along the spectrum towards supporting free speech… lately I’m more in favour of some common sense limits where there is predictable harm, as there would be here where certainly some gay people would be insulted or worse (impact on depression, self esteem etc). As has been pointed out elsewhere, a struggle for acceptance is already an issue for many gay people – and having biblical threats lobbed through the Twitterverse is without a doubt doing a level of harm. Personally, I couldn’t care less what he posts in terms of biblically based threats directed to me as a non-Christian. So what. However these same posts no doubt do result in unnecessary harm. He has a high public profile due to his employment – he should have just played nicely and keep his social media use “respectful” while in that employment until he career is over.. say 4 years… was it really that hard?
ShaghaiDoc
Roar Rookie
Now our disgraceful Faux Mo is making noises that eventually may lead to freedom to stick his religion down our throats. I believe he once went to a rugby match but was tossed out for failing a reading test. i.e. the seat number on his ticket. Hence he became a knuckle dragger. If Rugby Australia is able to learn anything perhaps it may have understood the lesson that buying league players, (aka knuckle draggers), to play union is a dangerous plan. First you have to teach them to read and write, which clearly fails when they don't read the CoC, or even the complete bible. PS Mark you're dealing with intelligent people here. Stop the nonsense and read the entire bible not just the bits you like. Instead of misogyny perhaps you could start with the Sermon on the Mount where it is said that people should love one another. Christians, Jews and Muslims are hate-filled people who used to stone non-delusional intelligent people to death. When Christians ruled the world historians named it the Dark Ages. Your Pope said that killing a Muslim was not really murder but then Catholics have never really been into cricket.
Kashmir Pete
Roar Guru
Clarification re above. By 'outing themselves as haters' i did not mean to infer that, in sense of it being of 'seeking to encourage hate'. I also have trouble drawing line, so as to extend 'hate speech' beyond 'intended hate speech'. Some believe the line should favor 'the offended' rather than around 'intent'. The arguments around that line are pretty obvious, but i prefer latter route. Cheers KP
Kashmir Pete
Roar Guru
I've read your addendum and not sure we are far apart. Where I agree is it's RA's problem that it signed Folau for 4 years with no effective media clause. A bit like Albanese signing up Alan Jones as a speech writer without making it clear that Jones should not comment on politics on radio without albanese first clearing the material. But on the bigger point, short of incitement to hatred or violence, I'm all for bigots proving to the rest of us where their values lie, by permitting them freedom of speech. That extends to outing themselves as hating xxxx . Problem with standing up for free speech, is at practical level when it comes up, typically involves defending ignorance or stupidity or both. Hate speech is a different thing, and I'm not confident society does not blur the line, by encapsulating the limits in freedom of expression, in terms of anti-discrimination legislation re 'this or that'. Thanks for going to effort of articulating your thoughts, wheter i concur or otherwise with any minutiae. Cheers KP
ShaghaiDoc
Roar Rookie
The last word published in "The Age": "Leviticus 19:28 Tattoos will send you straight to Hell! Leviticus 11:9-10 Shellfish and crustaceans will send you straight to Hell. See you there Izzi"
Kashmir Pete
Roar Guru
GoGWs We appear in agreement as to problems with religious freedom legislation. I see it only as subset of freedom of expression ie speech, in terms of how religion best protected. As otherwise it could be used to potentially justify problematic beliefs (polygamy perhaps a good example). That said, I think many would agree, that however dumb polygamy might me, would-be-polygamists should have right to freedom of expression of corresponding religious belief eg campaigning to change law to permit polygamy. Cheers KP PS - in passing, note polygamy might be good example of problems with anti-discrim legislation for religion. My understanding is illegal, but that socual services currently pay out welfare to polygamists as if 'he' married to each person, rather than limiting to one only.
Kashmir Pete
Roar Guru
Kashmir Pete
Roar Guru
Will digest both asap and get back 2u. Cheers KP
GoGWS
Roar Guru
Also KP, going on what ScoMo is reported as saying, the so called ‘religious freedom’ legislation is in the oven… so we may well be on the way to a world in which employers like RA can not simply craft employment contacts in a way that effectively impinges on a person’s ‘freedom’ to quote otherwise insulting and threatening religious texts, even if the ideas they convey are otherwise in contravention of some sort of employee code of conduct. I am speculating, but perhaps almost everything is on the table to publish on social media provided someone can point to some sort of religious basis for what they publish. That’s fine. In that sort of world then there will still remain common sense, common decency and social convention as a practical constraint to expression for for 99.9% of Australians – I expect that most people will continue to treat religion as mostly a private matter and not seek to be confrontational or proselytise. And then they’ll still be the 0.01% who are loud and proud, as they are now. Only under this new legislation championed by ScoMo they’ll have additional legislative protections- who knows what these protections will be but for arguments sake let’s grant that they will address the Folau situation. So Folau has an entitlement to make the post, and RA has to suck it up and honour Folau’s contract. What now? What I’m saying is that in that world someone like Folau would never have been offered a 4 year deal in the first place – he’d have been on 1 year deal or no deal at all. RA would manage the reputational risk by limiting the length of its contract or just opt out altogether – there’d be no compulsion to continue to employ someone who is so predictably toxic to your community or to your sponsors. Quite legitimately RA could have turned to it’s public and sponsors and said we don’t agree with Folau, and for that reason we’re not renewing him. Problem solved. As it is, RA took the leap with a 4 year deal on the understanding that Folau was sackable for continuing to post on social media in certain ways. Interesting to see how this plays out – there has been weird and wonderful legislation over the years so nothing would surprise me. Again, my experience in this country is that 99.9% of us have a ‘live and let live’ attitude to religion and we don’t know or care too much what others believe, or seek to convert them to our way of thinking.
In brief
Guest
That argument doesn't stack up - firstly, for most people religion is not a choice- IF grew up in a deeply religious family and his father remains a strong influence in his life. Hardly free to walk away from a way of life you are born into. Most alcoholics and liars don't choose to be so either - they are born a certain way either through addiction or otherwise. Also if you claim homosexuality is not a choice than why not extend the same benefit of the doubt to adulterers? For example, how would you define a bi- sexual adulterer who is part of both the LGBTIQQ+ community and married? Is their identity a choice? Your view is very selective and simply doesn't stack up.
GoGWS
Roar Guru
You might have missed my point. I’m not stating a view on the legal effectiveness of limiting employees use of social media generally, or specifically with respect to Folau (both of which may be subject to future changes under mooted legislation touching this areas). I was merely posing a hypothetical – imagine we live a world where it is shown that existing laws allow you to point to your expressed individual interpretation of religion and this trumps everything when it comes to posting on social media. In that world all of a sudden even very extreme messages could be posted and there would be nothing any employer could do about it directly – the only true way to avoid that reputational risk then becomes not to even employ people with problematic social media profiles, or employ them on short term contracts that can be just paid out. You now must manage the downside reputation risk of social media posts by staff who can post offensive religiously based posts. I’m not sure advocates for ‘religious freedom’ have really thought this through to the final outcome.
Nick
Roar Guru
Please, I prefer being known as "Lord and saviour of mankind". I'm Jesus. I'm back. Second coming all y'all.
Ruckin Oaf
Guest
So who’s continually attacking Folau through the legal system ? Think about that one Jimbo and then get back to us.
JimboJones
Guest
I think and you don't , thats the be all and end all of it.
The Late News
Roar Rookie
An excellent outline of the legal issue. I am sad that this has dominated the discussion about so many things, not just sport.
Uriah Heep
Roar Rookie
It was months before his new contract. Folau said he’d walk away from his contract if ….etc.. Except that was his last contract not the one they’re fighting about now. How will RA go arguing Folau’s statement to a contract that they’ve superseded without the specific conditions being part of the new contract ?
Uriah Heep
Roar Rookie
Telling Crusaders fans to go to hell ? Are you joking ? I don't know any obnoxtotron with a red and black eye-patch and a superiority complex who wouldn't laugh and serve it up. If they sooked about it they're welcome to support the Waratahs or the yellow team.