Folau vs Rugby Australia: An Unfair Dismissal?

by Sonia Hickey & Ugur Nedim

The lawyers for Australian rugby union player Israel Folau have filed proceedings in the Fair Work Commission, alleging that the basis of their client’s dismissal was unfair.

In case you missed the story, the controversy surrounding Mr Folau started several weeks ago, when he posted on his Instagram page that “drunks, homosexuals and adulterers” are destined for hell if they do not repent.

The devout Christian refused to remove the post despite discussions with Rugby Australia about the ‘appropriateness’ of the publication.

He vehemently defended his decision by saying it was a “religious message” written in the context of a “loving gesture.”

An intense three-day hearing the came before Rugby Australia chairs John West QC, Kate Eastman SC and John Boultbee, who found that Mr Folau had committed a “high-level” breach of his contract.

Despite having 72 hours to appeal the decision, Mr Folau opted not to, saying he had lost faith in the organisation’s ability to treat him fairly or lawfully.

He was dismissed on 17 May 2019, which put an immediate end to his $5 million contract with Rugby Australia and the NSW Waratahs, which had a remaining three years.

In an act of family solidarity, Mr Folau’s brother, 24-year-old John Folau, resigned the NSW Waratahs

Not the first time

It was not the first time Israel Folau clashed with Rugby Australia over the content of his social media posts.

A similar post last year created media headlines around the world, leading to a meeting with top executives, including Chief Executive Raelene Castle.

It was made clear to Mr Folau at the time that any further social media posts or commentary that was disrespectful to others due of their sexuality would result in disciplinary action.

Although Mr Folau’s new four-year contract, signed earlier this year, did not include additional clauses regarding social media, Ms Castle says there were several meetings with the star player, during which Rugby Australia set out clear expectations.

Rugby Australia claims Mr Folau chose to ignore these warnings, publishing the material regardless of them.

Complaint lodged with the Fair work Commission

Mr Folau’s legal team – comprised of a Queen’s Counsel and another barrister, instructed by an employment law firm – have now lodged a complaint with the Fair Work Commission, on the basis that the termination contravenes section 772 of the Fair Work Act, which among other things deems it unlawful to terminate a person’s employment on the grounds of religion.

As this is regarded as a ‘general protections’ claim, there are no limits on damages and it has been reported that Mr Folau could seek  $5 million in lost earnings plus punitive and other damages, which could amount to a total of $10 million.

Once in a generation player

Mr Folau’s talent and skill on the football field is well documented. He has been hailed as a ‘once in a generation’ player.

And while the nation is polarised about whether his termination was lawful, it is universally recognised that he has the ability to fulfil the terms of his employment in so far as his playing ability goes.

Many social media commentators has backed the star’s stance, saying he has every right to ‘communicate the word of God’ which is contained in the world’s most popular book, the Bible.

But others argue that such publications should not be tolerate by any employer, and that despite the fact the post was made on his private social media account, the fact Folau is in the public eye and has been previously warned about such conduct gave his employer the right to dismiss him in order to protect the interests of the company.

The Tribunal will decide

At the end of the day, it will be left to the Fair work Tribunal to examine the evidence and determine, amongst other things, whether the dismissal was unlawful.

On one side, Rugby Australia says it will “defend its core values and fight for the right for all people to feel safe and welcome in the game regardless of their gender, race, background, religion or sexuality.”

On the other, his lawyers will argue that the post is insufficient grounds for dismissal – that ‘no Australian of any faith should be fired for practising their religion.’

Australian sporting codes will no doubt be keeping a close eye on proceedings, as well as employers and their employees in other workplaces.

 

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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