December 05, 2019

Horse 2633 - Israel Folau v Rugby Australia - The Test Case Will Never Happen

Rugby Australia, NSW Rugby and Israel Folau have today settled their legal dispute following the dismissal of Israel Folau after he posted a religious message on social media (the Social Media Post).
The Social Media Post reflected Mr Folau’s genuinely held religious beliefs, and Mr Folau did not intend to harm or offend any person when he uploaded the Social Media Post. Mr Folau wants all Australians to know that he does not condone discrimination of any kind against any person on the grounds of their sexuality and that he shares Rugby Australia’s commitment to inclusiveness and diversity.

Rugby Australia and NSW Rugby do not in any way agree with the content of the Social Media Post. Inclusiveness is one of Rugby’s core values and it welcomes all people to the game, including all members of the LGBTI community. While it was not Rugby Australia’s intention, Rugby Australia acknowledges and apologises for any hurt or harm caused to the Folaus. Similarly, Mr Folau did not intend to hurt or harm the game of rugby and acknowledges and apologises for any hurt or harm caused.
Rugby Australia and Mr Folau wish each other well for the future. The Parties do not intend to comment further on the terms of their settlement as it is confidential.
- Rugby Australia Statement, 4th Dec 2019.

Yesterday, social media was awash with posts either praising or condemning both Rugby Australia and Israel Folau after the two parties settled out of court for an undisclosed sum. Now whatever you feel about this case, whether Israel Folau is a boofnut, or a martyr, or a saint, or a sinner, or whether Rugby Australia has sold out, been very canny, or caved in, the fact that there is an out of court settlement means that there is no test case and no precedent going forward.

As the chances of a 'normal' employee even having the funds to be able to challenge their employer over the validity of terms contained within codes of conduct and employment contacts are law, the chances of a 'normal' employee having the ability to win, may as well be nil. Future cases down these lines will now be fought via a war of monetary annihilation; which is excellent for businesses.

The open question of what happens to an employee who otherwise works very competently and professionally at their workplace but happens to like doing things on the weekend that their employer frowns upon, has by default been answered. The question of what exactly an employer owns of their employees' opinions outside of work, is now in effect exactly enough to fire someone without due cause.
Does an employer have the right to fire someone for being a Muslim? Or a Sikh? Section 772 of the Fair Work Act would suggest not however, the imposition of  terms contained within codes of conduct and employment contacts would suggest otherwise. What happens if a player is citing verses from the Qu'ran. What happens then? Would it become societally acceptable to sack that person?
Presumably the right to express opinions, even unpopular or distasteful ones is a right; rather that something which can be bargained away or trampled because of the wishes of an employer?

The Fair Work Act 2009 which sets out what happens if bargaining parties do not meet good-faith requirements, has more or less been set aside in future; especially in relation to Section 772 of the act:
Employment not to be terminated on certain grounds
(1)  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 orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- Section 772, Fair Work Act 2009

I think that Mr Folau going after $14m for an imagined loss which he would have been paid had he stayed on and become the Captain of the Wallabies, to be both delusional and gauche but I suppose than in asking for such an amount, he has given himself enough bargaining space to make a settlement which sees him at least materially comfortable for the rest of his now non-existent rugby career.
I do however want to know what would happen if an NRL club tried to register Folau as a player. Presumably if Rugby Australia fired him on the grounds of his religious beliefs, then the current ban from the NRL is actually a open ban based upon religious discrimination. Again, the question is still open as to what rights an employer has to control the religious beliefs and views of players well away from the workplace; or refuse to hire someone on the grounds of religious discrimination.

I was hoping for a definitive legal outcome in this case, so that the people who do not have the money to play games in court, can have some hope of a proper legal separation of work and private life. That has not happened because yet again money is once again is more important than principle.
The new de facto position is that your employer can still fire you for what you say in a private capacity on social media; which is unconnected to your work; in almost complete impunity because they know that you will not be able to come back at them. This is a total win for employers, and this all happened on the same day that the Ensuring Integrity Bill was reintroduced to the parliament and the Medevac legislation was repealed. Well done Australia.

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