Monday, 03 June 2019 00:22

Further reflections on the Israel Folau affair

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Further reflections on the Israel Folau affair wwow.nine.com.au

In a previous post I commented on the events surrounding celebrity rugby player Israel Folau’s posting on social media of a meme stating that various groups of sinners, including “homosexuals”, were destined for hell unless they repented and put their trust in Jesus Christ. He was immediately threatened with dismissal by his employer, Rugby Australia (“RA”), a threat subsequently implemented through an internal tribunal finding that he was guilty of a high level breach of the RA “code of conduct”.

It seems an appropriate point to comment on recent developments and to clarify what it seems Mr Folau’s legal options are.

Since my previous comments, we have seen the finding of a breach of the code of conduct by a three- person RA tribunal, and, on 17 May 2019, the announcement by RA that his contract had been terminated. He is reported as having commented:

Folau said he was “deeply saddened” by the decision and is considering his options.

He said in a statement: “It has been a privilege and an hour to represent Australia and my home state of New South Wales, playing the game I love.

“I am deeply saddened by today’s decision to terminate my employment and I am considering my options.

“As Australians, we are born with certain rights, including the right to freedom of religion and the right to freedom of expression.

“The Christian faith has always been a part of my life and I believe it is my duty as a Christian to share God’s word. Upholding my religious beliefs should not prevent my ability to work or play for my club or country.”

What, then, are his legal options? He has indicated that he would not avail himself of a further internal appeal process within RA.

Possible breach of contract claim?

One possibility is that he may sue RA for a breach of their contractual obligations to him. That is, while they claim that his post amounted to a breach of their “code of conduct” (apparently a clause which requires a player not to “share material on social media that condemns, vilifies or discriminates against people on the basis of their sexuality”), he may argue that what he did, did not amount to a breach of this provision, and that by terminating his employment they have breached their obligations.

(It is worth noting that, despite claims to the contrary at an early stage of the controversy, Mr Folau’s contract did not contain a specific clause forbidding him from social media comments on the topic of homosexuality. He had been engaged in a previous controversy with RA over similar comments in April 2018, but the available public evidence seems to be that this did not result in him agreeing to additional contract clauses over and above the “standard” player contract, incorporating the general code of conduct.)

Whether a claim that RA were in breach would depend, of course, on whether a court concluded that the terms quoted above, referring to “vilification” or “discrimination”, were apt to describe what he said. In my previous post I argued that they were not.

Here I want to just refer to a somewhat similar case arising in the UK where a court ruled that comments which expressed opposition to same-sex marriage did not fall into the category of punishable “hate speech”. In Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) (16 November 2012) Mr Smith, a council officer, had expressed some concern on Facebook about same-sex marriage being conducted in churches. A colleague, who had asked him to explain his views further, took offence at what he said. The result was, as the court said at para [5]:

For making those two comments Mr Smith was suspended from work, on full pay, on 17 February, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing on 8 March, at the end of which he was told that he had been guilty of gross misconduct for which he deserved to be dismissed. Due to his long record of loyal service he was told that he was with immediate effect only to be demoted to a non-managerial position with the Trust, with a consequential 40 per cent reduction in his pay, phased over 12 months.

The result of this case was that Mr Justice Briggs found that the Council had breached their contract with Mr Smith by imposing these penalties. Contrary to what had been alleged, he had not “brought the Council into disrepute”, because his Facebook comments were made on his private social media site, where while he was identified as an employee of the Council, it was clear he was not “speaking on behalf of” the Council (paras [57]-[59]). An explicit ban on his “promoting” his beliefs to colleagues was not intended to apply to the sort of remarks he made on his private social media account- see para [79].

The final ground on which the Council had relied was that his contract said that he ought not to engage in “any conduct which may make another person feel uncomfortable, embarrassed or upset”. But here Briggs J ruled that again, in the context, this was mainly intended to apply to direct workplace interactions. As he said at [82]:

The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech. To construe this provision as having application to every situation outside work where an employee comes into contact with one or more work colleagues would be to impose a fetter on the employee’s freedom of speech in circumstances beyond those to which a reasonable reader of the Code and Policy would think they applied. On any view their main application is to circumstances where the employee is working for the Trust.

The circumstances of the two cases, of course, are not identical. Mr Smith did not have thousands of Facebook friends. His comments may be said to be much “milder”. But there are similarities, and the case is a reminder that an employer may breach their contractual obligations by penalising an employee unfairly for an alleged breach of “code of conduct” obligations which has not been properly established.

Remedy under the Fair Work Act

As well as a possible breach of contract claim (which could be litigated in the Supreme Court of NSW), there may be a possible remedy for dismissal under the Fair Work Act 2009 (Cth) (“FWA”). I mentioned in my previous post that under s 772 of that Act :

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)…religion.

A claim under s 772 must be made, under s 774, within 21 days after the employment was terminated (here, for example, if the termination did not take place until the announcement on May 17, the claim would have to be made by June 8, 2019).

It is worth noting some of the complexities and limits around this claim, although (as I will explain) my own view is that it would be available.

One obvious question is whether the termination here has been for the “reason” of Mr Folau’s religion. His exhortation was a paraphrase of a Bible verse, and accompanied by an encouragement to repent and seek salvation in Jesus Christ. But it might be claimed that the termination was not on the basis of his religion, but rather on the basis of his choosing to express his religion in a way which insulted or offended homosexual persons.

The question is a complex one. Being able to express one’s view on religious issues is a fundamental part of religious freedom under international law, although of course this right may be limited by other rights. But the international law limits on religious freedom are quite narrow, and (as has been noted by Professor Aroney from UQ Law School) the prohibition on “hate speech” in art 20 of the ICCPR would not be applicable in this case.

Under the FWA it only needs to be shown that “one” of the reasons for the termination of employment was religion. The question that may need to be resolved is the extent to which a religious employee should be allowed (on their own platform, and on their own time) to make comments motivated by their religious beliefs, without suffering the extreme penalty of termination. Note also that under FWA s 783, once it is alleged that religion was a reason for termination, the onus of proof that it was not lies on the employer.

However, it is worth noting some other apparent issues with relying on s 772. One is that, within the same Part of the Act (Part 6) we read :

723 Unlawful termination applications

                   A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

Section 772, which we have been discussing, is an “unlawful termination” provision. There is a presumption, then, that, if some other remedy is available under the FWA, that should be used. One obvious possible “general protections” application would be a claim of adverse action based on personal characteristics (including religion) under s 351 of the Act.

But there is an important qualification to s 351 in sub-section 351(2), which in effect precludes any “adverse action” claim unless it would amount to unlawful discrimination in the State or Territory where the action took place. It would then be futile to require an employee dismissed on account of their religion to make a “general protection” claim under s 351, only for it to be rejected because of s 351(2).

This precise problem arose in the decision of the Fair Work Commission in McIntyre v Special Broadcasting Services Corporation[2015] FWC 6768 (1 October 2015). In this high profile litigation, an SBS employee had posted a number of social media remarks attacking the celebration of Anzac Day. When dismissed, he claimed that his dismissal was on the basis of his “political opinion”, one of the other “prohibited grounds” of termination listed in s 772(1)(g) (along with “religion”). His claim that s 351 had been breached would be rejected on the basis of the lack of such a ground of discrimination in NSW. But the Commission allowed a (late) claim under s 772 to be made, since in the circumstances Mr McIntyre was precluded from his s 351 claim. The Commissioner commented, interestingly, as follows:

[29] Unfortunately, but not unsurprisingly, those who advised the applicant were unaware that the anti-discrimination law in New South Wales does not make it unlawful to discriminate against a person on the basis of their political opinion. In passing, I note that discrimination on the basis of religion may also not be specifically established to be unlawful under the Anti-Discrimination Act 1977 (NSW)… (emphasis added)

The Commissioner’s comment here is support for the availability of a s 772 claim in a case like that of Mr Folau, where no action under NSW law would be available, and hence the “general protections” provisions such as s 351 could not be utilised.

Conclusion (for now)

The Israel Folau case can justifiably be said to have become a cause celebre in Australia on issues around religious freedom and views on sexuality. It has been suggested with some justification that one of the reasons for the recent unexpected election victory of the re-elected Liberal/National Party Coalition government was a concern in parts of the electorate that religious freedom rights were under threat. It may be that the high profile of the Folau case (including the formal announcement of his dismissal on May 17, one day before the Federal poll), contributed to a sense of general unease over these issues. After all, if a high-profile and much in demand celebrity can be summarily dismissed for comments echoing the teaching of the Bible on sexuality, how much harder will it be for ordinary workers to be honest about their religious views on such matters?

But the case may not have yet run its course. I have no personal contact with Mr Folau or his legal team, but it seems to me that there are some worthwhile avenues under which his dismissal may be challenged; and such a challenge may be helpful to clarify these important legal issues facing believers from all faith traditions across Australia today.

Neil Foster

Law Professor

Neil is an evangelical Christian, an Associate Professor in law, a father and a grandfather. He has qualifications in both law and theology and teaches “Law and Religion” as an elective to later year law students.

He blogs at Law and Religion Australia

https://lawandreligionaustralia.blog/