The termination of Israel Folau’s $4m playing contract has set the scrum for a Federal Court case which is likely to shape the landscape of religious expression and vilification in the employment context.
Folau’s controversial “warning” on Instagram stated that “Hell awaits” those who are “homosexuals … thieves and atheists”, among others, telling them they should ”Repent!” because “only Jesus saves”.
Along with NSW Rugby, Rugby Australia’s (together, Rugby Bodies) initial decision to sack Folau because of a high level breach of the Professional Players Code of Conduct was upheld by a Code of Conduct hearing. The parties were also unable to reach a settlement agreement in the Fair Work Commission late last week.
It is now likely Folau will issue proceedings in the Federal Court of Australia under the general protections provisions of the Fair Work Act 2009 (FW Act), arguing that the termination of his employment occurred because of his religion, which constitutes adverse action taken for a prohibited reason in breach of the FW Act.
Making out his case
A reverse onus of proof applies to adverse action claims. The fact that the claim has been made by Folau is enough for the Federal Court of Australia to presume that the termination of Folau’s playing contract occurred because of his religious expression.
The Rugby Bodies must persuade the Federal Court that Folau’s religion was not the reason, or one of the reasons for the termination of Folau’s contract. Even if arguing the reason for termination was a breach of their Code of Conduct, the Rugby Bodies must still demonstrate that Folau’s religion was not one of the reasons for his dismissal and that his dismissal was only because of his failure to comply with the directions given to him regarding use of social media.
It appears difficult to separate Folau’s conduct and Folau’s religion, given the breach itself was an expression of his religious views. If a distinction is identified, the Rugby Bodies would likely be successful. However, the conduct and his views seem so intertwined that it is difficult to separate the two, meaning that Folau may well be successful.
If he is successful, there is no limit to the amount of compensation that could potentially be awarded to Folau by the Federal Court of Australia. Folau will also likely seek an apology from the Rugby Bodies.
Under the FW Act, there are exceptions which permit discrimination, including where the action would not be unlawful under another anti-discrimination law in force. Under the Anti-Discrimination Act 1977 (NSW) (AD Act), it is unlawful to vilify someone on the grounds of their homosexuality.
However, under the AD Act, it is not vilification if the act is a public act, done reasonably and in good faith, for religious instruction, or for other purposes in the public interest, including discussion or debate about any matter.
A finding on whether Folau’s actions vilified homosexuals and whether his behaviour can be excused by being religious instruction, or discussion or debate, will be central to the outcome of the case. If Folau has breached the AD Act, the Rugby Bodies would then need to show that this vilification gave them the right to terminate Folau’s contract. The position at law is currently unclear.
When Folau’s contract was last re-negotiated, Rugby Australia failed to include any provisions dealing with the appropriate use of social media. Rugby Australia also do not have a social media policy. They do maintain that they provided him with directions as to their expectations of him as a player, including that any social media post or commentary that is in any way disrespectful to people because of their sexuality will result in disciplinary action.
Whatever the outcome, this matter provides a stark reminder to all employers of the importance of having robust policies in place to set the expectations of employees and the consequences for them if they fail to comply with those expectations.
Folau has selected his team and the Federal Court scrum is set. We will watch with anticipation to see the impact Folau’s case will have in the match-up between religious expression and vilification in the workplace.
Thank you to Ross Watkins for his contribution to this article.