.

  • Written by Anthony Forsyth, Professor of Workplace Law, RMIT University
Israel Folau is claiming that Rugby Australia unlawfully sacked him because of his religion. The organisation, however, contends the rugby star violated the terms of its code of conduct by discriminating against LGBTQ people. Lukas Coch/AAP

Former Wallabies rugby star Israel Folau is the latest in a series of Australian employees to lose their jobs because of social media posts in recent years.

Through a combination of common law rules and broadly expressed codes of conduct, employers have increasingly been able to control their workers’ private activities, including on social media.

But what makes Folau’s case different is that it sets up a clash between employment contract law and legal protections against discrimination on the basis of religion.

This could set an important employment law precedent for future cases like this, which is especially contentious at a time when religious freedom is being so fiercely debated in Australia.

What claim has Folau brought?

Rugby Australia terminated Folau’s employment contract last month after a tribunal determined his actions had breached the organisation’s code of conduct. The offending behaviour was an Instagram post by Folau in April, warning homosexuals (among others): “Hell Awaits You. Repent! Only Jesus Saves.”


Read more: Egging the question: can your employer sack you for what you say or do in your own time?


Folau has now brought a claim under Section 772 of the Fair Work Act alleging the termination was because of his religion and, therefore, unlawful.

The application argues that as a manifestation of his Christian religion, including regular church attendance and preaching, Folau is:

…compelled to communicate the word of God and the message contained within the Bible.

According to media outlets, he is claiming around A$5 million in lost salary and an additional A$5 million in compensation for other missed opportunities, including sponsorships.

What the Fair Work Act says in cases like this

Rugby Australia maintains that Folau was dismissed not because of his religious beliefs, but because he breached the player code of conduct.

The code is typical of that of many businesses. It requires players to treat everyone equally and with dignity, regardless of their sexual orientation; not to use social media to breach expected standards of behaviour; and not to make public comments or otherwise act contrary to the best interests of the game.

What makes Folau’s claim unique is that it depends on the court’s view of whether he was dismissed for reasons that included his religion, as specified under Section 772 of the Fair Work Act.


Read more: The 'gay wedding cake' dilemma: when religious freedom and LGBTI rights intersect


This claim could be easier for Folau to prove than another part of the Fair Work Act commonly relied upon in discrimination cases, Section 351.

Case law tells us that Section 351 requires the employee to prove an employer was motivated to discriminate against him or her because of religion. So, if an employer can point to an employee’s breach of their employment obligations as the reason for dismissal – instead of a discriminatory motive – then the employee’s claim fails.

In contrast, under Section 772, Folau only has to show that his religion was merely among the reasons for the dismissal.

However, in order to make his case, he will also need to demonstrate that his Instagram post constituted an exercise of his religion.

There are some big questions to be resolved here: how far does a person’s right of religious expression extend? Does being a Christian necessarily mean you can express the views of your faith in any public forum?

And does it allow Folau to express his views in the way that he did (noting that he says he was simply quoting from the Bible)?

Rugby Australia chief Raelene Castle says Folau repeatedly ignored warnings about his behaviour on social media. David Gray/AAP

Are there any precedents in case law?

Discrimination law doesn’t help us out much here.

Various state and territory laws protect a person from being discriminated against due to religious “belief”, “conviction” or “activity.” However, the case law shows that only certain characteristics of those who observe a particular religion fall within these protections, for example, a Hindu who practices fasting, or a Sikh wearing a turban. Previous cases haven’t dealt with the question of speech associated with a person’s religion.

For further guidance, we can turn to cases involving an employee’s right to express political opinions. But here, too, we find a bit of a mixed bag.

Academics seemingly have more latitude to express political opinions because their free speech rights are backed up by “intellectual freedom” clauses found in most university enterprise agreements.


Read more: Explainer: does Rugby Australia have legal grounds to sack Israel Folau for anti-gay social media posts?


This enabled former James Cook University physics professor Peter Ridd to successfully contest his dismissal for public comments critical of climate science. Academic freedom was also behind the claim mooted by La Trobe University’s Roz Ward, who was suspended in 2016 for social media comments criticising the “racist Australian flag,” before the university eventually backed down.

By comparison, federal public servants are subject to very restrictive policies curtailing their free speech rights.

However, the case of former Department of Immigration official Michaela Banerji shows that public service employees may be able to rely on the implied constitutional freedom of political communication. She won a workers’ compensation case on the basis that her dismissal for anonymous tweets criticising government policies breached her constitutional rights. The federal government is now contesting that ruling in the High Court.

New territory for employment law

Outside the academic and public sector contexts, we don’t yet have a definitive ruling on the apparent conflict between an employer’s right to control employees’ social media comments and the protections of religious or political freedom found in discrimination law.

Many of these cases settle out of court, such as Angela Williamson’s claim against Cricket Australia for unfair termination following tweets she sent that were critical of Tasmanian government policy on access to abortion.

It’s highly likely that a settlement will be reached in the Folau case, as well. But if it does go to trial, I think the employer’s contractual right to impose standards of behaviour will trump the rugby star’s right to express his religious views.

Court rulings have tended to favour employers seeking to enforce their behavioural policies and codes, including the regulation of employees’ private activities. The Folau case is an important opportunity to see whether the right to express religious views can halt the steady march of employer control in the era of social media.

Anthony Forsyth has received research funding from organisations including the Business Council of Australia, the Construction, Forestry, Mining and Energy Union, the Fair Work Commission and Victorian Government. The views expressed in this article are his own. Anthony blogs on workplace issues at: https://labourlawdownunder.com.au/

Authors: Anthony Forsyth, Professor of Workplace Law, RMIT University

Read more http://theconversation.com/why-the-israel-folau-case-could-set-an-important-precedent-for-employment-law-and-religious-freedom-118455

2019 Makeup Trends

The year 2019 has brought us a lot of amazing new makeup trends that have made the process of applying makeup much more fun. Still, if we were to follow every single makeup trend out there, we would soon go bankrupt or end up with a look that doe...

Diana Smith - avatar Diana Smith

Spiritual and physical food

In many cultures there are some spiritual rules concerning foods that people are allowed to consume. And just in general, our own bodies can hint using various methods on what we should eat right now ...

News Company - avatar News Company

What to put on the road

When preparing for a road trip at the top of your list should be working out the itinerary. Gather your family together and decide on where you will go, what you will do, and what you will see. It is ...

News Company - avatar News Company

Australia's still building 4 in every 5 new houses to no more than the minimum energy standard

New housing in Australia must meet minimum energy performance requirements. We wondered how many buildings exceeded the minimum standard. What our analysis found is that four in five new houses are be...

Trivess Moore, Lecturer, RMIT University - avatar Trivess Moore, Lecturer, RMIT University

Would you eat meat grown from cells in a laboratory? Here's how it works

There is rationale for thinking about alternatives to meat. ShutterstockFor many of us, eating a meal containing meat is a normal part of daily life. But if we dig deeper, some sobering issues emerge...

Leigh Ackland, Professor in Molecular Biosciences, Deakin University - avatar Leigh Ackland, Professor in Molecular Biosciences, Deakin University

Centre-left politics: dead, in crisis, or in transition?

New Labor leader Anthony Albanese will need to negotiate the centre-left 'crisis' if he hopes to win office. AAP/Bianca de MarchiThe ALP’s defeat at the 2019 federal election was a surprise. Sho...

Rob Manwaring, Senior Lecturer, Politics and Public Policy, Flinders University - avatar Rob Manwaring, Senior Lecturer, Politics and Public Policy, Flinders University

Morrison wants to unleash economy's 'animal spirits' and foreshadows new look at industrial relations

Prime Minister Scott Morrison will lay out economic policies "to get Australians off the economic sidelines and on the field again" on Monday. Dean Lewins/AAPScott Morrison will commit to getting con...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

People who spread deepfakes think their lies reveal a deeper truth

Deepfakes make it harder for us to communicate truths to one another and reach consensus on what is real. ScreenshotThe recent viral “deepfake” video of Mark Zuckerberg declaring, “w...

Mark Andrejevic, Professor, School of Media, Film, and Journalism, Monash University - avatar Mark Andrejevic, Professor, School of Media, Film, and Journalism, Monash University

In Never Look Away we finally have a painter biopic offering insight into the creative process

Tom Schilling as Kurt Barnert – a slightly blurred facsimile of the famous German artist Gerhard Richter – in Never Look Away. Pergamon Film, Wiedemann & Berg Filmproduktion, Beta Cine...

Ted Snell, Professor, Chief Cultural Officer, Cultural Precinct, University of Western Australia - avatar Ted Snell, Professor, Chief Cultural Officer, Cultural Precinct, University of Western Australia

Dan Tehan wants a 'model code' on free speech at universities – what is it and do unis need it?

An independent review found there was no freedom of speech crisis at universities, but it recommended a model code of conduct. from shutterstock.comThe federal education minister, Dan Tehan, has calle...

Katharine Gelber, Professor of Politics and Public Policy, The University of Queensland - avatar Katharine Gelber, Professor of Politics and Public Policy, The University of Queensland

For women's sake, let's screen for depression as part of the new heart health checks

Research suggests depression is a risk factor for heart disease and stroke. From shutterstock.comThe latest government statistics, released last week, show that from 2001-2016, the rate of cardiac eve...

Adrienne O'Neil, Principal Research Fellow & Heart Foundation Future Leader Fellow, Deakin University - avatar Adrienne O'Neil, Principal Research Fellow & Heart Foundation Future Leader Fellow, Deakin University

5 Home Decor Essentials for a Well Styled Home

Who doesn’t dream of a well-styled home? Well-styled and well-organised. If you are looking for decorating must-haves for your home, you have come to the right place. Consider this article mini-gu...

News Company - avatar News Company

Why Organic SEO Services Matter

Brands trying to build up their popularity are often curious to know how organic services can help them. Well, if you have heard of organic SEO, you’ll probably know it is a vital part of marketi...

News Company - avatar News Company

VIDEO: Michelle Grattan on the winding up of Australian Conservatives - and the government's income tax cuts

Michelle Grattan talks with University of Canberra Deputy Vice-Chancellor for Research and Innovation, Professor Leigh Sullivan, about the week in politics. The discussion includes Cory Bernardi anno...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

Psst, Matildas: here's the best way to score at the Women's World Cup

Sam Kerr has found plenty of goal-scoring opportunities for the Matildas at this year's Women's World Cup. Guillaume Horcajuelo/EPASport science can offer some valuable insights to the teams contestin...

Mark Scanlan, Sessional Academic, Edith Cowan University - avatar Mark Scanlan, Sessional Academic, Edith Cowan University

The mighty mulga grows deep and lives long

Mark Marathon via Wikipedia, CC BY-SASign up to the Beating Around the Bush newsletter here, and suggest a plant we should cover at batb@theconversation.edu.au. Among the nearly 1,000 species of Aus...

Gregory Moore, Doctor of Botany, University of Melbourne - avatar Gregory Moore, Doctor of Botany, University of Melbourne

Need to find a good restaurant? Economics serves up some golden rules

Stay away from the tourists traps, economics tells us. Your best bet are those cozy places away from the bustle. www.shutterstock.comWhere to eat? It’s a question you’ve probably pondered ...

Lionel Page, Professor in Economics, University of Technology Sydney - avatar Lionel Page, Professor in Economics, University of Technology Sydney

Why revive a forgotten Australian classic? Oriel Gray's The Torrents remains relevant today

Celia Pacquola as Jenny Milford in The Torrents. A new production of the forgotten Australian play shows its themes are still relevant today Philip GostelowReview: The Torrents, Heath Ledger Theatre (...

Vivienne Glance, Hon Research Fellow in Poetry and Theatre studies, University of Western Australia - avatar Vivienne Glance, Hon Research Fellow in Poetry and Theatre studies, University of Western Australia

Difficult for Labor to win in 2022 using new pendulum, plus Senate and House preference flows

Unless Labor improves markedly with the lower-educated, they risk losing the seat count while winning the popular vote at the next election. AAP/Dan PeledAustralian elections have been won in outer ...

Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne - avatar Adrian Beaumont, Honorary Associate, School of Mathematics and Statistics, University of Melbourne

LifeStyle

How to Revolutionize Your Beauty Experience

Being concerned with beauty and cosmetics used to mean frequent visits to the salon and sitting in...

8 Cool Yet Romantic Things to do in Australia

Australia is a wonderful place for vacationing this summer and you can beat the heat as they have ...

How to Banish Dark Circles without the Need for Cucumber Slices

Dark circles can be downright annoying, especially when you are getting enough sleep. So, what cau...

Innovation and Future Trends in the Beauty Industry

  When medicine, tech, and beauty join forces, there’s no stopping the innovative solutions th...