Is terminating an employee based on expressions of religion legal?
At this point, Israel Folau is probably more well known for the outrage caused by his Instagram summary of biblical doctrine than for his career in rugby. The long and ongoing drama has people asking questions about freedom of speech, codes of conduct and how we should behave in a world of social media.
From an HR perspective, the central question is the legality of a dismissal and how the debate around it changes things on a cultural level. HRM wrote about it before the Code of Conduct hearing, but have things changed?
UPDATE 06/06/19: Folau has officially launched legal proceedings against Rugby Australia for breach of contract under Section 772 of the Fair Work Act (his legal team will argue he was terminated on the basis of religion). His lawyers have released a statement that says they are seeking “substantial remedies from his former employers should they be found to have breached the Fair Work Act in terminating his employment”. Numerous outlets report the potential amount to be in the vicinity of $10 million.
The proceedings
Rugby Australia (RA), as you would expect from a high profile sports organisation, has a fairly complicated process for addressing breaches of its code of conduct. After Folau’s post, the sport’s governing body informed him that its integrity unit had determined he had committed a high-level breach, and it intended to sack him. (The level of breach is significant, as only a ‘high level’ can result in dismissal, though the minimum penalty is a week’s salary).
Folau, as was his right under RA rules, then asked that the matter be referred to a code of conduct hearing.
That hearing, conducted by a three-person independent panel, last week found that Folau had indeed been guilty of committing a high-level breach.
A quick review of the code of conduct reveals that this decision was always likely.
Keep this in mind folks … from RA’s code of conduct pic.twitter.com/nAuPCIKNAY
— Tom Decent (@tomdecent) May 7, 2019
There are a few factors in there that are important to this case.
- Folau seems guilty of (i) as he had previously been reprimanded for a similar post
- Ditto for (ii)
- While some people have defended Folau, it’s hard to argue the post didn’t cause offence – that’s (iii)
- It’s also fair to say that it caused reputational damage, so that’s point (v)
- (vi) could possibly be defended with a freedom of religion argument, but you’d need to know more about those core values to do so
Also key to the issue, and any decision, is that Folau has expressed no remorse for the post. It has not been taken down and it seems that it is a very sincere expression of his Christianity. A Sydney Morning Herald story outlines how Folau sees the situation as a test of his faith, and has dealt with RA on that understanding. He has said that he might post similar things in the future.
Footage has been released of Folau at church talking about the saga. Folau says ‘satan’s work’ is to make issues like this easier in the form of lesser penalties.
Conduct vs Fair Work Act
From appearances, seems Folau could be in breach of at least three sections of the ‘Players’ code of conduct, including section 1.3 (which deals with treating people fairly regardless of identity, sexuality, etc), 1.6 (which references public comments detrimental to the competition’s best interest) and 1.7 (which prohibits social media use which breaches the rest of the code of conduct).*
But, given that the Fair Work Act makes it unlawful to discriminate based on religion, are breaches of the code of conduct enough to make Folau’s dismissal fair?
Alan McDonald, the Managing Director of employment law firm McDonald Murholme says, “If Folau is to be treated as an employee, then he and his employer need to comply with the Fair Work Act and Rugby Australia’s code of conduct cannot override the law. Which is what the organisation is appearing to be trying to do.”
McDonald is not contesting the fact that Folau was in breach of Rugby Australia’s code of conduct but says, “Forcing employees to constrain their political opinion on threat of dismissal contravenes the Fair Work Act 2009.
“The Fair Work Act has wide protection for certain rights, for example; women and pregnancy rights, religious beliefs and political opinions. These are wide ranging as you would expect, because the act wants to keep as many people in employment as possible and protect freedom.”
Reputation on the line
McDonald reflects a common belief when he suggests that Rugby Australia, like any other large organisation, is doing what it can to uphold what is in its sponsors’ best interest. Qantas is one of the biggest sponsors for Rugby Australia and its CEO is Alan Joyce, a proud and out gay man.
Therefore, if Folau’s views conflict with Rugby Australia’s sponsors’ views, is that not cause enough to terminate his contract? McDonald says no.
“It’s not fair for them to do that, as they’re not merely debating a conflict of ideas but rather saying, ‘we want to exercise power of those who exercise a contrary set of views’. Folau has a big name and a big brand and what he is doing is challenging the social views of some in our community.”
McDonald says that it could be viewed that Qantas is impacting Folau’s rights and income by influencing the third party (Rugby Australia) which will in turn have an impact on his rights to exercise his views, instead of engaging in a fair debate with him.
“Rather than debate Folau in the media, Qantas is saying, ‘We want Folau silenced so long as he is a rugby player for the team we sponsor.’”
At AHRI’s 2019 Diversity and Inclusion conference, Alan Joyce was asked about Folau’s Instagram post. In his answer he referenced that when he left his home country of Ireland, homosexuality was still illegal there, and that we’re not far removed from a world which actively excludes people in the LGBTI+ community. He expanded, pointing out that suicide for gay men is far beyond the national average, and that many people are still afraid to come out for fear of persecution.
“So comments like Folau’s have consequences,” says Joyce. According to LGBTI Health, gay men are indeed at greater risk of mental health issues and suicide.
Freedom of religion or inciting hatred?
Joyce’s comments speak to the heart of the debate Australia is having. Is Folau’s post covered by freedom of religion or is it a case of a public figure inciting hatred? And does freedom of religion trump an employer’s right to dismiss someone who very publicly expresses values contrary to its own?
“I don’t think that anyone would assert that Folau doesn’t have a right to say what he said. It’s just the manner in which he’s saying it – which is by Instagram,” says partner at Lander and Rogers Aaron Goonrey.
“He has so many followers. My understanding was that there were a lot of people who liked the comment. And the reason why this is so polarising as a subject matter is that – while we have rights in terms of how we express ourselves – I don’t think that this is a case where Rugby Australia is seeking to terminate his contract because of his views. They’re seeking to sanction him in this way because he’s done it in such a public and overt way.
“What he said may not have any effect on a mature person from the LGBTI+ community but it will affect younger members of it who have heard these comments, who will think, ‘I’m being treated in a different way by a prominent person,’” says Goonrey.
“It’s very difficult for a younger person to make the distinction between someone who is expressing their freedom of religion and someone who is mentioning homosexuality in a negative way.”
Goonrey says that if an “ordinary person” made posts similar to Folau’s on social media, then they would face consequences similar to Folau’s.
“The community standard expects more, not just from employers and organisations but also from people. If you go back to other cases – where people who are not as high profile as Israel Folau have been terminated because they’ve expressed repugnant views via social media – those dismissals have been upheld because they are contrary to the code or the ethos that the employer has.”
Let us know what you think in the comments below.
*A previous version of this article did not mention sections 1.6 or 1.7 in RA’s Code of Conduct.
“treat everyone equally, fairly and with dignity” -If the complaint hinges on this, how they can legitimately show this. He specifically did not treat anybody unequally, unfairly or without dignity, nor did he ‘bully, harass, or discriminate’ anyone.
Let’s go back to basics and stop trying to twist things to fit agendas. If he personally has treated anyone unequally or personally discriminated against anyone, I agree the behaviour should be dealt with. If not (as is the case) move along.
“if an “ordinary person” made posts similar to Folau’s on social media, then they would face consequences similar to Folau’s”…. seriously? Goonrey seriously believes this to be true?…. Wow. I’m truly flabbergasted and flummoxed by that statement.
I agree with Sharlene. The only exception I would make would be if he was an employee of an organisation that exists to advocate for any of the groups listed (eg. LBGTI; A sex workers union etc) like, say, a satanist employed by a Christian church openly expressing his philosophical opposition to the Christina faith – exemptions for which are already provided by existing legislation. RA is a sporting body, not an advocacy agency for any of the groups listed in the passage quoted.
It’s a simple conduct matter. If an employer gives an employee a reasonable direction not to do something and the employee does it (repeatedly in this case), then employment is likely to be terminated, as the employment relationship is broken. In this case the conduct also brought the employer into disrepute, so there was no choice.
The obstacle for Folau is the trifecta of decisions dealing with the ‘reason’ for decision – namely Board of Bendigo Regional TAFE v Barclay, CGMEU v BHP and CFMEU v Endeavour Coal. The Court will ultimately ask what is the reason of the decision maker (or makers) and it will allow the decision maker to ‘split hairs’ by saying, it was because the comment was homophobic not because it was religious. Unless the High Court is prepared to reconsider the issue (noting that it refused leave to appeal in Endeavour Coal) , it seems well settled.