Employment contract law -v- religious discrimination protections: will Israel Folau overturn his dismissal by Rugby Australia?

An edited version of this post was published in The Conversation, 11 June 2019:  Why the Israel Folau case could set an important precedent for employment law and religious freedom

Former Wallabies and Waratahs rugby star, Isreal Folau, is just 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 (see: https://theconversation.com/egging-the-question-can-your-employer-sack-you-for-what-you-say-or-do-in-your-own-time-116880)

What’s diffferent about the Folau case is that it sets up a clash between employment contract law and legal protections against discrimination on the basis of religion.

What claim has Folau brought?

Rugby Australia terminated Folau’s contract of employment on 17 May 2019, on the basis that the Code of Conduct Tribunal had imposed the sanction of contract termination following Folau’s breaches of the Professional Player Code of Conduct.

The offending behaviour was an Instagram post by Folau in April, warning homosexuals (among others) that ‘Hell Awaits You. Repent! Only Jesus Saves’.

Folau has brought a claim under section 772 of the Fair Work Act alleging that the termination was because of his religion and therefore was 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’.

He is claiming around $5 million in lost salary and compensation for opportunities foregone including sponsorship. A total claim of $10 million has been mentioned in the media.

Will the employer’s right of control or Folau’s ‘freedom of religious expression’ prevail?

Rugby Australia maintains that Folau was dismissed, not because of his religious beliefs, but because he breached the Player Code.

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 comment or otherwise act contrary to the best interests of the game.

Whether Folau succeeds in his claim depends on the court’s view of whether he was dismissed for reasons that included his religion. This is a different test, and one that is easier for Folau to satisfy, than that applicable under another Fair Work Act provision commonly used in discrimination cases.

Section 351 requires an employee to show that an employer dismissed them because of a prohibited attribute such as their religion. Case law tells us that this test requires an identification of the motivation of the decision-maker: if an employer can point to an employee’s breach of their employment obligations as the reason for dismissal, rather than a discriminatory motive, then the employee’s claim fails. In contrast, under section 772, Folau only has to show that his religion was among the reasons for the dismissal.

However 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 connote that you can express the views of your faith in any public forum, in the terms in which Folau chose to (noting that he says he was simply quoting from the Bible)?

Discrimination law doesn’t help us out much here. Various state and territory laws protect religious ‘belief’, ‘conviction’ or ‘activity’. The case law really only indicates that certain characteristics of those who observe a particular religion are encompassed within the protections (e.g. a Hindu who practices fasting, or a Sikh wearing a turban). The cases haven’t dealt with the question of speech associated with a person’s religion.

For guidance, we can turn to cases involving an employee’s exercise of their right to express political opinions. Here we find a bit of a mixed bag.

Academics seemingly have more latitude because their free speech rights are backed up by ‘intellectual freedom’ clauses found in most university enterprise agreements. 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 Latrobe University’s Roz Ward, who was suspended in 2016 for social media comments criticising the ‘racist Australian flag’ until the university backed down.

Federal public servants are, on the one hand, subject to a very restrictive policy curtailing their free speech rights (see: https://www.apsc.gov.au/making-public-comment-social-media-guide-employees) On the other hand, 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 (and consequent psychological condition), for anonymous tweets criticising government policies, breached the constitutional right. The federal Government is now contesting that outcome in the High Court.

Outside the academic and public sector contexts, we don’t yet have a definitive ruling on the contest 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, such as last year’s claim by Cricket Australia staffer Angela Williamson (dismissed following tweets critical of Tasmanian government policy on access to abortion), settle out of court.

It’s highly likely that a settlement will be reached in the Folau case as well. But if it does go to trial, I wouldn’t mind betting that the employer’s contractual right to impose standards of behaviour will trump the rugby star’s right to express his religious views