By Michael Hitch
The Israel Folau and Rugby Australia battle rages on as the Fair Work commission continues to hear Folau’s case, with concerns from legal experts that Rugby Australia is fighting an up-hill battle involving religious discrimination, freedom of speech and contract law.
From a Tongan family, Folau’s professional sporting career included two years with Melbourne Storm rugby league – where he scored a record 21 tries in his debut season – followed by the Warrington Wolves in Britain, the Queensland State of Origin team, two seasons with Brisbane Broncos, then changing codes for two seasons playing Australian Rules football with the Greater Western Sydney Giants, before swapping codes again to rugby union to join the NSW Waratahs and the Australian Wallabies.
Although raised a Mormon, in 2011 Folau became an active member of the Assemblies of God fellowship that embraces conservative Pentecostal beliefs.
At the start of 2012 he was chosen, along with nine others, by the Australian Football League as a Multicultural Ambassador, promoting the benefits of inclusion and diversity.
However, he provoked controversy in April 2018 in the wake of the national Plebiscite on Same-Sex Marriage, when a follower of his Instagram account asked him about God’s ‘Plan for Homosexuals’. Folau replied, “Hell.. unless they repent of their sins and turn to God.”
The former Wallabies star’s $5 million contract with Rugby Australia was terminated in May 2019 after a number of hateful and anti-LGBTIQ+ comments were made to his social media profiles, which stated that Hell awaited ‘homosexuals’, ‘drunks’ and ‘atheists’, to name a few.
The three-member panel that recommended the termination – John West QC, Kate Eastman SC, and John Boultbee AM – cited the anti-LGBTIQ+ social media posts. This decision prompted Folau to take action in the hopes of the Fair Work commission ruling that his employment termination was ‘unlawful’ due to his religion.
Senior Lecturer in Business Law at the University of Sydney Business School, Giuseppe Carabetta, said that the onus is on Rugby Australia to “rebut the presumption – under the unlawful termination process under Fair Work – that religion was behind the termination of the star player’s contract” – a “heavy burden” that RA will have to carry.
“That is a heavy burden, but RA will argue that it had a legitimate reason for termination – namely breach of its code. Folau may argue that the code was not actually breached, or that it goes beyond what a policy or contract can control,” he said in a press release.
Carabetta also told City Hub that while the burden is heavy, Rugby Australia can make arguments against the claims of religious discrimination – noting the difficulty in other relevant cases of defining an employer’s control over an employee’s private life and social media.
Religious freedom to offend?
“They may also point to the fact that despite a number of postings by Folau/others inspired by religious belief, they did not act on those – because they were not, in their view, homophobic or offensive. This is the breach they argue is at issue,” he said.
“There have been previous ‘social media breach’ matters. Currently, we have one before the High Court concerning a public servant. Though very different types of employment, a live issue in that case is: ‘How far can or should an employer go in regulating what employees do in their private lives, or away from the ‘workplace’.”
A statement released by Folau’s team said he plans to challenge the termination under section 772 of the Fair Work Act, which prohibits the termination of employment based on a person’s religion.
Folau is also seeking up to $10 million in damages if successful, with $5 million being sought in lost income and up to another $5 million in the value of lost opportunities.
Last week, through legal representatives, Folau said that this challenge proved a need for better protection of individual religious freedoms and called for an ending to the erosion of ‘fundamental rights.’
“A nation made up of so many different faiths and cultural backgrounds will never be truly rich unless this freedom applies to all of us,” he said.
“The messages of support we have received over these difficult few weeks have made me realise there are many Australians who feel their fundamental rights are being steadily eroded. No Australian of any faith should be fired for practising their religion.”