Israel Folau launches Legal Proceedings in the Fair Work Commission

June 8, 2019

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Israel Folau has decided to launch legal proceedings in the Fair Work Commission under the general protections provisions of the Fair Work Act.  Clearly his legal advice was that this was the strongest legal avenue for him to pursue, as opposed to Supreme Court proceedings for breach of contract and either an unlawful process conducted by Rugby Australia (RA) or a breach of their rules in the manner in which the disciplinary proceedings occurred. 
In essence Mr Folau is to argue that his termination was for unlawful discriminatory reasons related to his religious practice. 
Section 772 of the Fair Work Act states that:
  1. An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
                      (f)  race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
The argument must be that Mr Folau was terminated because of his religious beliefs, or for practising his religion, in simple terms.  If the practice of his religion was not any part of the reason or motivation for his termination, then his case fails. 
The RA response is that Mr Folau was not terminated because of his religious beliefs, but rather because firstly he breached the RA Code of Conduct, and second he failed to obey the lawful and reasonable directives of RA, which they are entitled to give as his employer and he is obliged to obey as employee.  Those directives were that he must act in an inclusive manner in relation to all other employees of RA and in relation to his public communications.  A year before his most recent breach in about March, 2019, he committed a very similar breach.  He was told in clear terms that he must not repeat the behaviour.  However, it was not included as a specific clause in his contract, but the argument is it did not need to be. 
When he repeated his offending social media posting in March this year saying amongst other things that gay people will go to hell, he was not acting inclusively as his employment terms and conditions require.  He is allowed to practice his religion, and hold any religious view he chooses.  That is his freedom of religious practice.  The issue arises by his public expression of those religious views. 
It does not matter at all that he held his religious beliefs genuinely and was motivated to make the community a better place, based on his religious world view.  To take an analogy, some terrorists (including those that killed 3000 in the September 2011 World Trade Centre attacks) would say they are acting on strongly held religious convictions with a view to making the world a better place, but that does not justify their murderous acts.  I do not suggest that Mr Folau is likely to take any adverse actions  – I believe he is a good person and exceptionally talented athlete with not a harmful intent whatsoever in his mind.   The point is that the public expression of religious views can have devastating consequences.  
However, as Ian Roberts, gay former NRL player said in an interview, this is about social media tweets that have serious adverse impacts on gay and LGBTIQ members of the community.  This group suffers from mental health, depression and isolation due to amongst other things marginalisation caused by strongly expressed views such as Mr Folau’s.  He is a public figure, with some 38,000 Twitter followers.  His tweet can indirectly contribute to a suicide epidemic amongst young gay persons, according to Mr Roberts. 
The issue is not the views held by Mr Folau.  The issue is disobedience of a directive given to him by his employer not to express his controversial religious views.  The issue is his  breach of the RA Code of Conduct.   The issue is him expressing his views publicly.  He was terminated for taking the positive step of promoting anti-inclusive and arguable hate speech sentiments.  If he did not make social media posts on the issues he chose to, his personally held religious beliefs would be completely acceptable. 
The issue in this case was his breach of social media policy.  An employer is entitled to regulate out of hours conduct of an employee when it has a relevant connection to the employment.  Here, the connection is that anti-inclusive sentiments are unacceptable (and a breach of contract) in large parts of the workplace in Australia, including at RA.  Further, the employee may bring the sport into disrepute and cause a breach of a sponsorship agreement by tweeting as Mr Folau did.  He is not above the law. 
The only lingering argument he may have was the arguable pre-determination to terminate his contract suggested by RA, which was then tempered to a possibility of termination following a disciplinary hearing.  The initial public statement of what appeared to be an intention to terminate the contract seemed to be a breach of procedural fairness.  How could Mr Folau expect a fair and open hearing after he was effectively told “we want to terminate your contract”? 
That is not to say the panel that decided his case was in any way prejudiced by any media comment or other directives prior to the hearing.  The panel was supremely talented, fair minded and eminently qualified to come to the conclusion it did. 
The Fair Work Commission will conduct a conciliation (mediation) conference and if the case does not settle, the matter will be referred to the Federal Court for hearing.  The reason that jurisdiction was chosen rather than the NSW Supreme Court was in this authors view because it has more flexibility in regard to community trends and public mores, as opposed to a strict black letter application of the laws.  The Federal Court has more expertise in employment law matters generally, and probably more openness to extending the law to accommodate a religious discrimination allegation where it is open on the facts.  However, in this case, it is not open on the facts. 

For further information on Fair Work Commission matters and to obtain specialised employment legal advice, please email or contact our firm on (03) 9642 0435.

Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.