There has been significant media attention on Israel Folau following his Instagram post that ultimately led to his dismissal as an employee of Rugby Australia (RA). In this article Caitlin Meers looks at Israel Folau’s case and claims that can be made in the Fair Work Commission.
The practical impact of his termination is that Folau is unable to play rugby for the NSW Waratahs franchise or to be selected for the Wallabies, the Australian representative rugby team.
Following a code of conduct hearing (organised by RA), it was found that Folau was guilty of a ‘high level’ breach of his contract flowing from the Instagram post. The effect of the guilty finding was that his employment was terminated. This decision was appealable, however Folau elected not to appeal the decision.
Instead, Folau elected to file a claim in the Fair Work Commission (FWC). Generally speaking, employees have 21 days to file a claim if the claim flows from their dismissal. This 21-day period commences from the day the employee was first dismissed from their employment.
As has been widely reported, the offending Instagram post quotes a passage of the Bible and detailed a list of people that would be sent ‘to hell’ as a result of their ‘sins’.
In his claim, Folau alleges that he was unlawfully terminated because of his religion. It has been reported that Folau’s position is that his post merely quoted a passage of the Bible and that the words used were not his own words.
Ultimately, it appears that Folau seeks a declaration that his employment was unfairly terminated as a result of his religious beliefs and/or that his employer has breached the general protections available to Australian employees.
It has been reported that Folau has made a claim for damages as part of his application, including $5 million dollars in complete payment of his employment contract (due to expire in or about 2022) as well as unspecified losses flowing from alleged loss of opportunities. These lost opportunities include further renewal of his existing contract, sponsorships and financial benefits he may have otherwise gained if his employment hadn’t been terminated.
Further, Folau is seeking that civil penalties be imposed upon RA for unfairly dismissing him. These penalties, if imposed, act as a fine against RA for its conduct and are separate from the claims of damages (loss) made by Folau.
What happens if you are dismissed?
Dismissal in Australia is governed by the FWC and the Fair Work Act 2009 (Cth).
Unfair dismissal involves a series of considerations about the circumstances in which an employee was dismissed. These include:
- the reasons given (if any) for dismissal
- provision of warnings
- notice periods
- whether redundancy would have been more appropriate.
General protections applications
In addition to specific unfair dismissal protections, employees may also make a general protections application. General protections can allow employees to make claims for unfair dismissal if they were unfairly treated or discriminated against because of their race, colour, gender identity, sexual orientation, age, disability, marital status, pregnancy, religion, political opinion, or national or social origin.
They also exist to prevent employers from taking negative action (for example, dismissal) against employees who exercise a workplace right, for example, taking sick leave.
In the matter of Church of the New Faith v Commission of Pay-Roll Tax (Vic) (1983) 154 CLR 120, 150, the Court held that it was difficult to consider and define religion as there is no universally accepted definition of the word ‘religion’.
Whilst employers are not permitted to discriminate against their employees based on their religion, there may be legitimate reasons for which the employer imposes restrictions upon the employee’s religion to ensure the quality of the business’s operations.
For example, RA has alleged that it could not allow Folau to continue to post the offending material as it affected a number of sponsorships that RA relies heavily on to continue its operations and to ensure the interest of the Australia public – the consumer of its product.
This is not the first example of a clash between religious professional sportspeople and their employer club. In 2016, rugby league player William Hopoate, a devout Mormon, advised his club (Canterbury Bankstown Bulldogs) that he would not participate in any games or training scheduled on a Sunday as it clashed with the requirements of his faith that he not work on a Sunday.
In 2017, following a shortage of players and upon reflection, Hopoate reneged on his refusal to play on Sundays and re-commenced participating in matches scheduled for Sunday. He maintained that he would not train or participate in any other club activities on Sundays.
This was a decision made between the employer, the Bulldogs, and the employee, Hopoate. The negotiation in the first instance allowed the employer and employee to come to an agreement that suited both parties.
In the Folau matter, it does not appear that any such agreement was reached between the parties, though this may be discussed further as the matter proceeds.
It’s difficult to say how Folau’s matter will play out. It is open to the parties to negotiate behind closed doors to attempt to resolve the claim on confidential terms. Such terms could include some payment being made to Folau in exchange for his claim being withdrawn from the Commission.
If the parties cannot otherwise resolve the matter, it will proceed to a full hearing in the Commission, at which point the Commission will consider all evidence before it and make a finding about the claim, including whether Folau has been successful or unsuccessful in his claim.
How can we help?
If you are concerned about a dismissal, and that it may be an unfair dismissal, our experienced Employment Law team can help you understand your rights and obligations. Contact us on 02 6285 8000 or by email.