The public scrum over the sacking of Israel Folau by Rugby Australia has continued to gain momentum, with reports the Federal Government may press ahead with seeking to introduce Phillip Ruddock’s proposed Religious Discrimination Act to parliament in July 2019, writes Patrick Turner.
Further, senior Liberal Matthias Cormann is reported as stating such a law would protect people from “inappropriate, unacceptable levels of discrimination based on their religious beliefs, or based on not having any religious beliefs at all.”
Folau’s sacking has polarised public opinion and raises important questions about the degree to which employers can control an employee’s private views expressed publically.
It has also prompted questions about the adequacy of existing protections for expressions of religious views.
The posts which brought Folau undone are now notorious. In referring to an article about Tasmania’s decision to legislate gender optional birth certificates, on Twitter, Folau posted that “the devil has blindsided so many people in this world, REPENT and turn away from your evil ways".
On Instagram, Folau posted an image that, among other things, claimed that hell awaits “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters".
Notwithstanding that there are few members of the legal profession who would not fall within this group, Folau has reportedly engaged a top silk and is considering legal proceedings against Rugby Australia for breach of contract and religious discrimination.
But what are his chances under current laws?
Folau is barred from bringing an unfair dismissal claim by dint of the high-income threshold. In this jurisdiction, it is well established that inappropriate social media posts that adversely affect the reputation of an employer may provide a valid reason for dismissal, though a one-off incident may make such a dismissal harsh.
Without seeing Folau’s contract, it’s impossible to say definitively what any breach of contract claim might look like, but it’s easy to see what his employer’s argument will be.
The media reports that Folau’s employment was terminated following the decision of a three-person panel, which featured two prominent senior barristers, that he had committed a “high-level breach” of the Professional Players’ Code of Conduct in making the posts.
Rugby Australia will, no doubt, seek to rely on express contractual terms in Folau’s agreement providing that it may terminate the contract if he contravenes its policies and procedures (including the Code of Conduct).
Having reviewed professional athlete contracts before, there is also likely to be an exhaustive list of express terms which otherwise seek to control how Folau conducts himself in public which they may be able to point to as having been breached.
For most workers with less stringent contractual obligations, what private conduct can be regulated by an employer is less clear-cut. The Federal Court has relevantly held that: “once an employee’s conduct can be shown to have significant and adverse effects in the workplace… that conduct becomes a proper matter of legitimate concern to an employer, and does so because of its consequences”.
This distinction is critical in these cases and Folau’s conduct could be seen to pose a risk to the health of his colleagues but also, to the reputation of Rugby Australia and the game.
So in the absence of a clear contractual or unfair dismissal claim, where should Folau turn?
The Fair Work Act 2009 (Cth) prohibits discrimination on the basis of an employee’s religion. Most states have also passed legislation prohibiting discrimination on the ground of religious belief or activity, with the important exceptions of NSW and South Australia.
Federal anti-discrimination legislation provides that a complaint may be made to the Australian Human Rights Commission for discrimination on the ground of religion but no enforceable remedies can flow from such a complaint. This forms part of the rationale for the introduction of any proposed Religious Discrimination Act.
Where Folau is very likely to run into trouble should he make such a claim is that Rugby Australia will likely run the strict argument that it is not the religious activity or belief that prompted its action but the contravention of its Code of Conduct.
Folau’s views may make him an unsympathetic public figure to many, with poor prospects under existing laws, but his sacking has prompted an important public debate about the issue of encroaching employer control of employee private activity.
While it looks like Folau is now being used as the banner-bearer for a renewed push for stronger protections for religious views, it should not be lost that too many ordinary workers private lives are increasingly subject to excessive employer scrutiny and control. This where the real focus should lie.
Patrick Turner is an associate within Maurice Blackburn's Brisbane-based employment law practice.