Israel Folau has a prodigious leap and a powerful fend. He does not, however, turn the other cheek. Having lost his $5m playing contract with Rugby Australia, Folau decided to skip the step of an internal appeal and take his case to court. Reportedly, he’ll be seeking damages on top of his lost salary, taking his claim towards $10m.
Folau has launched proceedings against Rugby Australia (RA) in the Fair Work Commission, claiming wrongful termination. Specifically, his case is under section 772 of the Fair Work Act, the precise wording of which is critical:
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.
RA says that it sacked Folau because he breached his contract, in particular its social media policy with which Folau was contractually bound to comply. That policy prohibited contracted players from doing what Folau did: going on social media with public statements that directly contradicted RA’s stated values.
RA’s values include diversity and inclusiveness. Folau said, because he believes it to be true, that gay people will be going to hell. RA said sorry, we can’t have you out there as our brand ambassador saying stuff like that, love you but you’re gone.
The case will boil down to a single question: did RA terminate Folau because of religion?
Folau’s supporters have been loudly shouting yes, of course, what else could it have been? Folau wears his faith on his Facebook page, what he said was 100% an expression of religious belief, and he was sacked because he said it. Case closed.
Clearly, s772 prohibits termination because of an employee’s religion; RA couldn’t have sacked Folau because he’s a Christian, or because he believes that gays are going to hell (which can only be a religious belief, hell being a strictly religious destination).
Equally clearly, RA didn’t do that. It was no secret that Folau is deeply religious, like plenty of other rugby players. He’d been plastering Facebook with his beliefs for a long time, but RA had called him on it only twice: both times for posts that were objectively homophobic.
So, the sacking came not because of Folau’s religion but because of what his religious faith caused him to do. Does the distinction matter?
The High Court had to deal with a similar question under s772’s predecessor, in 2012. An employer had suspended one of its employees (Mr Barclay), who was also a trade union officer. Barclay had allegedly breached his contract by publishing to members of his union information regarding an internal audit of the employer.
Barclay claimed that he had been suspended because of his union role, which was illegal. The same applies under s772; you can’t terminate an employee because they belong to a union or engage in union activities.
The case turned on the meaning of “because”. The employer’s evidence was clear: it would have suspended Barclay whether or not he was a union member or officer. The High Court unanimously upheld the suspension, confirming that “because” refers to the subjective motivation of the employer. As the court said:
“It is erroneous to treat the onus imposed on an employer [by the Act] as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association.”
The point being that, if an employee possesses one of the characteristics listed in s772, that does not invest them with extra rights over and above those enjoyed by any other employee. They are still subject to contract law like everyone else.
Translating this to Folau’s situation, it would be wrong to suggest (as many commentators and politicians have) that it is legally impossible for an employer to take disciplinary action against an employee in respect of anything the employee does which has a religious element to it.
If Folau hand-wrote “Gays are going to Hell” on his Wallabies jersey before running onto the field, he would be sacked. Nobody, surely, would argue that RA could not do that. However, that act would be no more or less connected to his religion and religious beliefs than his Facebook posts were.
Would RA have terminated Folau for posting that gays are going to hell, if his religion actually commanded the exact opposite? Or if he was an atheist? Or, did it sack him only because he didn’t just say it, but also believes it?
The reality here is that Folau was sacked not because of who he is, but because of what he did. The fact that the cause of his action was religion may explain his motivation, but is unconnected with the reason why his employer kicked him out. His case, therefore, isn’t good.
Ironic, given that Folau’s judgment on LGBTQI people was made solely by virtue of who they are, not anything they did.
Do you think Folau will win his legal challenge? Write to boss@crikey.com.au with your full name and let us know.
Folau’s post wasn’t religious freedom, it was hate speech. When someone tells someone else to, “…go to Hell”, it pretty much means, “I hate you”, “Go fuck yourself” etc. I can’t remember any wording from the Gospel that looks or means anything like his post. And sooo, it’s goodbye Folau. And if the court swallows his claim for the literal interpretation of this rant, then that would be extraordinarily shallow indeed.
Thanks for another quality piece of explanation Michael. The twists and turns of the law.
It will be a sad day when some ignorant bozo can hide behind religion…. Mmm maybe too late for that. One can only hope for his soul that he loses the case, gets costs awarded against him and ends up bankrupt. After all his religion also mentions rich men and camels through the eye of needles.
Judgement is also the exclusive preserve of his god if I recall correctly. The fire and brimstone approach comes from the Old Testament which Mark Twain suggests is about god before he got religion.
“Folau said, because he believes it to be true, that gay people will be going to hell.”
If it were true, why would it matter to him that another person was “going to hell”?
Because, Wayne, ANY fellow Christian has a responsibility towards your soul. Similarly for Folau. Had you been forced to attend Sunday school from 5-10 years of age you would know of the obligations that Christian has to another Christian (that are quite clear)
Heretics were burnt that their souls might be saved. The event had nothing do do with retribution and any number of opportunities were given to the heretic to recant. Moreover, the event was transferred to the civil authorities; the Ecclesiastical authorities having discharged their obligation before god. The trial of Joan of Arc is a pristine case (even if she was delivered to the enemy : the English – who actually had her burnt).
Similarly for baptism but we are discussing Folau and not Ecclesiastical law – which is fascinating in terms of reciprocal obligations.
Fascinating only to some….! Eye rollingly dull to others of us!
“… both times for posts that were objectively homophobic”
Since homophobia is, by definition, an extreme or irrational fear of homosexuals, I’m not sure that it can ever be objective. Fear is always subjective.
And what is there to say that Folau fears homosexuals? Just because he believes that they are going to Hell doesn’t mean he is afraid of them.
His post also said that drunks and atheists are going to Hell, so that’s me stuffed. Doesn’t mean he fears me though. I’d be rather surprised if he did.
Homophobia isn’t a “fear”, it’s an attitude.
Furthermore, religion neither compels nor causes people to do anything. People interpret scripture as they do and consciously make decisions that might perhaps be informed by them, but are certainly not causative.
“ReLiGiOn held a gun to my head and made me say homophobic things!”
Get absolutely f*cked. It did not.
You forgot fornicators they are destined for hell also. That would mean the majority of Australians. Should there be a law forbidding sex outside marriage to stop and protect most Australian people from going to hell.
No Bill; not at all. For a long time (and with Orthodox and Catholicism nowadays) marriage was a sacrament and strictly did not require a Priest until the Council of Trent.
However, the law and history of Criminal Concubinage is quite another matter and to this end you are closer to the mark but ONLY for transgressors. In order to combat illegitimacy in the 18th century (which was getting out of control) the Act was tightened to quite some degree where Breach of Promise was enforced to the beginning of the 20th century.
Although dueling had been outlawed such events were conducted in secret until the 1870s if the risk of guilty party absconding was deemed high.
I don’t know who you think conclusively defined what homophobia is exactly, but I think you’ll find that very few people agree with your narrow definition of irrational fear. Just because the word contains the suffix “phobia”, doesn’t mean it’s a mental health condition neatly classified by the WHO or something.
Not that dictionaries are ultimate authorities on the meaning of words, but they are a good start, and you’ll find that Merriam Webster, OED, Longman and Macmillan all provide definitions that refer not only to fear of homosexuals, but also to hatred, aversion, strong dislike, prejudice, and discrimination against homosexuals.
the overarching interest in where others place their peni’ is a bit weird.. and repenting just sounds like another position..
I’m curious why Folau seems to have ignored or forgotten what his god said about rich men going to heaven and camels passing through the eye of a needle.How good would that be if he put that on his Instagram?