Israel Folau is now certainly unemployed, most certainly not by choice. So what exactly should he do next?
The answer to that question must be framed by considering whether it’s actually unlawful for Rugby Australia to terminate Folau’s four year, multi-million dollar contract.
But before proposing what Folau should do next let me start by stating, unreservedly and not for the first time, that his method of evangelising via Instagram is abhorrent. It’s devoid of any sensitivity and emotional intelligence; and it’s incredibly dangerous and unbelievably reckless. Yet, I will nevertheless defend Folau’s right to express his religious beliefs.
Pulpitry via social media plainly isn’t and shouldn’t be a sackable offence. That isn’t a criticism of RA’s code of conduct tribunal because it was asked to determine if Folau had breached RA’s code of behaviour. The tribunal didn’t actually terminate Folau’s contract although it recommended it; RA did.
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Indeed, if one is to take seriously RA’s statement of its vision for an inclusive culture, set out in the preamble to its Inclusion Policy, it’s difficult to understand how Folau could end up persona non grata.
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On this "vision", RA’s policy states: Our vision can only be achieved if our game is one where every individual participant, whether players, officials, volunteers, supporters or administrators feel safe, welcome and included.
However loathsome and offensive some people consider the manifestation of Folau’s religious beliefs to be: isn’t it the case, that he too is one of those people RA promised to make feel safe, welcome and included?
Moreover, although the Bible can be interpreted to say that unrepenting drunks, homosexuals, adulterers, liars, fornicators, atheists and idolaters (and revilers, swindlers and the greedy) are destined for Hell, this isn’t exactly the message taught at your neighbourhood Catholic primary school circa 2019.
Without doubt, Folau’s espoused religious beliefs are wildly and permanently dislocated from the values held and cherished by most Australians. Yet it doesn’t follow that Folau, in resolutely maintaining his religious beliefs, should be subjected to the termination of his employment. Equally, it doesn’t neatly follow, that Folau and his actions are "homophobic".
Has anybody bothered to consider the possibility that Folau himself might be hopelessly conflicted and agonised between his own personal relationships with people who are LGBTIQ, and the tenets of his Pentecostal religion? Shouldn’t we pause to consider that whatever the dogmas of Folau’s faith might be, maybe he bears no hatred, fear or loathing of homosexuals or any of the other of the classes of people to which he refers? As heads is tails …
But back to this question: now RA has terminated Folau’s employment, exactly what can he do next? That’s a pertinent question, considering Folau is 30 years old; where he’s just lost his seven-figure income, in the only career he’s ever known; and where it appears he’s got a limited array of transferable skills.
Although classified as a termination of employment due to a high-level breach of RA’s code of conduct, it’s difficult and arguably artificial to distinguish between that high-level code of conduct breach being the reason; and Folau’s religion, religious beliefs and his expression of those religious beliefs.
And if you accept it’s arguable that Folau’s employment was terminated for the reason of his religion, religious beliefs and his genuine expression of those beliefs, then surely you can’t lose your job in Australia for that? RIGHT???
See, this is where it gets tricky. For the purpose of what I’ll say next, accept that both Folau and RA are "residents" of NSW; he was a RA employee; and that Folau’s Instagramming happened here too.
The Fair Work Act — itself a piece of Commonwealth, and not NSW legislation — applies to RA’s employment of Folau. Section 351(1) of the Act says an employer such as RA can’t take adverse action against an employee because of the person’s religion, EXCEPT WHERE the action is not unlawful under the anti-discrimination laws in force in the place where the action was taken.
Section 342 says that "adverse action" includes dismissing the employee.
Now every state and territory in Australia, except NSW and South Australia, has enacted some form of laws prohibiting discrimination on the basis of religion, beliefs and the like. Although the federal government — because Australia has ratified the International Covenant on Civil and Political Rights – has the legislative power to prohibit discrimination on the basis of religion and religious beliefs, it hasn’t done so. If Folau had’ve been living in St Kilda and playing for the Melbourne Rebels, things may have been different.
So section 351 of the Act isn’t of any apparent use to Folau — the applicability of that provision is directly dependent on the existence of other laws, preventing religious discrimination in NSW. There are none. But, all isn’t lost … another section of the Fair Work Act might well assist.
One of the stated objectives of Part 6-4, Division 2 of the Fair Work Act is to give effect to International Labour Organisation Conventions 111 and 158, which were adopted in 1958 and 1982 respectively, then and ratified by Australia in 1973 and 1993.
The ILO is an agency of the United Nations. Under these two instruments of international law, Australia agreed that it would enact laws eliminating religious and other discrimination in employment AND that it would legislate so that employment can’t be terminated on invalid grounds, including because of an employee’s religion.
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According to the ILO, such religious discrimination includes discrimination based on a person’s expression of their religious beliefs.
Accordingly, section 772(1) of the Fair Work Act makes it unlawful (subject to some irrelevant exceptions) for an employer to terminate an employee’s employment because of, or for reasons including an employee’s religion. And if an employee’s religion includes a person’s expression of their religious beliefs — "believers" hardly worship in a vacuum — then was Folau terminated for reasons including his religion, or not?
If an employee’s employment is nonetheless terminated because of reasons including those which are statutorily unlawful under section 772(1), the employee has 21 days after the termination, to apply to the Fair Work Commission, asking it to deal with the matter.
Usually, the FWC deals with such matters by way of mediation or conciliation. Those methods of touchy-feely dispute resolution won’t cut the mustard though, in resolving the dispute to the satisfaction of either RA and Folau. So once the FWC agrees, the Act requires it to issue a certificate to that effect. Thereafter, Folau is free to take his unlawful termination case to the Federal Court of Australia.
Remember, we’re dealing with "unlawful" termination, not a guillotining which is merely unfair or harsh. Once unlawful termination is alleged, it’s up to RA to prove the termination wasn’t anything to do with any unlawful reason, or for reasons INCLUDING that unlawful reason.
And if RA can’t prove the termination had nothing at all to do with religion, then the Federal Court has the full jurisdiction to order that RA reinstate Folau; pay him full compensation; pay his (no doubt significant) legal bills; and pay a civil penalty of $50,000 or more.
It’s fair to say that an immense amount hinges on RA being able to absolutely delineate between it having terminated Folau’s employment because he breached RA’s applicable code of conduct by reason of expressing his religious beliefs; but NOT because of his religion, religious beliefs or the expression of those beliefs.
Moreover it’s a dangerous division to say that a professional athlete’s right to genuinely express their religious beliefs is mutually exclusive with his or her right to work.