“Impossible position”: Folau sacking case could change how employers deal with discrimination

A high-profile legal dispute between Rugby Australia and sacked Wallabies player Israel Folau could have wide-ranging implications for the way employers deal with discrimination claims in the workplace.

Rugby Australia terminated Folau’s $5 million contract last month over an Instagram post where he derided homosexual people as sinners destined for eternal damnation in hell.

The case has sparked a heated debate about freedom of religion, but Rugby Australia has argued the termination of his contract is a question of employment law.

The body claims Folau was in breach of its code of conduct regarding player behaviour, including on social media, which all players agree to adhere to when they sign their employment contracts.

However, Folau’s legal team yesterday filed documents with the Fair Work Commission (FWC), claiming his sacking was unlawful because section 772 of the Fair Work Act prohibits terminating a worker on the basis of religion.

Untested laws to consider rights of employers

A legal battle slated to consider the rights employers have to govern the behaviour of their employees is now brewing, with Folau already indicating his intention to take the matter to the Federal Court.

There he will seek up to $10 million in damages for loss of salary and other opportunities.

Rugby Australia has resisted attempts to paint the case as a matter of freedom of religion, saying in a statement yesterday it is a matter of an employee and his obligations to his employer under a contract.

“[Folau] was bound by a Code of Conduct for all professional players in Australia that spells out clear guidelines and obligations regarding player behaviour, including respectful use of social media,” the body said in a statement.

But by arguing his sacking is unlawful under section 772, Folau will likely prompt the Federal Court to rule on the limitations of an employer’s power to prevent discriminatory expression.

This is different from unfair dismissal, which would require the commission to consider whether the sacking was harsh, unjust or unfair.

Workplace Law managing director Athena Koelmeyer says the case will be closely watched for its potential implications for employers across the country.

“From an employment context, this case is going to be such a big deal,” she tells SmartCompany.

The concept of protection of religion or religious freedom is a relatively new one because there is no discrimination law that protects against that,” Koelmeyer says.

“This unlawful termination provision in the Fair Work Act is pretty much it, and it’s really been untested.”

“Impossible position” for employers

Koelmeyer says if Folau is successful in his bid, employers could be put in an “impossible position” trying to balance freedom of religious expression with other workplace discrimination laws protecting LGBTIQ people.

“If employers, because of this decision, are required to tolerate religious speech, they’re going to have to balance that against discrimination laws, which I would suggest is almost impossible,” Koelmeyer says.

“Imagine Fred’s metal manufacturing has somebody who is a particularly devout Christian along the lines of Mr Folau,” Koelmeyer says.

“He wants to say things he says are in support of his religion, to the effect that Tim down the end of the line is a homosexual and he’s going to hell, and everybody should tell him he’s going to hell.

“[Tim] is entitled to work in a workplace free from discrimination and that’s something clearly protected under a number of laws.”

Koelmeyer says Folau will need to give evidence about his specific version of Christianity and what that religious doctrine compels him to do and say.

“There will need to be evidence at some point put before the judge about what the religion is and what freedom of expression about that religion entails,” she says.

Rugby Australia, which Koelmeyer says will indirectly be a voice for all Australian employers in this case, will be free to argue competing discrimination concerns make Folau’s case untenable.