Israel Folau and Rugby Australia face crucial conciliation meeting

Israel Folau. Photo / Photosport.co.nz

There could be progress in Israel Folau's stoush with Rugby Australia today when the pair come together for conciliation.

The public debate over Folau's conduct and Rugby Australia's decision to terminate his contract has intensified over the past week after the sacked rugby player asked Australians to fund his case.

Now the venue for that argument is finally shifting from the media to the legal system.

Folau has lodged a claim of unfair dismissal with the Fair Work Commission, seeking $10 million in compensation. Half of that is to cover his lost salary, with the other half accounting for damages and lost earning opportunities, such as sponsorships.

He argues he was fired for expressing his religious beliefs. Rugby Australia says it tore up his contract for violating its code of conduct.

WHAT IS THE FIRST STEP TO RESOLVE THE ISSUE?

The first step in resolving that dispute is conciliation, an informal process that gives both sides a chance to reach a settlement and avoid the prospect of an expensive and time-consuming formal hearing.

The conciliation itself is quite a simple event, typically conducted over the phone, rather than face-to-face. An independent conciliator will moderate a conversation between both parties for about 90 minutes and attempt to help them strike a deal.

The conciliator's job is to identify common ground, suggest possible solutions, make recommendations and, if needed, help draft an agreement.

According to the Fair Work Commission's own figures, four out of every five disputes are resolved at the conciliation stage, though legal experts are not expecting that outcome in this case.

AND IF THAT FAILS

Should Folau and Rugby Australia fail to reach a settlement today, the matter will automatically proceed to a formal hearing.

Folau has hired commercial law firm Macpherson Kelley and one of Australia's most prominent workplace relations barristers, Stuart Wood AM QC, to represent him.

It's a formidable team with an equally formidable price tag — hence Folau's plea for funding from the public. At the time of writing, he had raised more than $2.1 million with the help of the Australian Christian Lobby.

WHAT TO EXPECT FROM FOLAU'S TEAM

So, what can we expect from Folau's team? Perhaps something bold.

The Sydney Morning Herald, citing sources familiar with Folau's tactics, reports his team considered the drastic idea of adding Qantas as a defendant.

The airline is the Wallabies' major sponsor. Hypothetically, Folau could have argued Qantas and its boss Alan Joyce influenced Rugby Australia's decision to rip up his contract.

One of the key clauses in the code of conduct Folau allegedly violated says players cannot "make any public comment that would likely be detrimental to the best interests, image and welfare of the game, a team, a club, a competition or union".

Rugby Australia will argue Folau's comments about hell awaiting gay people risked costing the sport fans and sponsors — and there is no sponsor more valuable to it than Qantas.

Folau's team ultimately ended up deciding against the move. Just as well because legal experts told the Herald it would have been a "suicide mission". But such an option being considered at all gives us an interesting insight into his team's thinking.

Folau's basic argument is Rugby Australia violated section 772 of the Fair Work Act, which details all the reasons an employer cannot use to terminate a worker's contract. Religion is one of them.

He will say Rugby Australia sacked him for practising his religion, and therefore the termination was unlawful.

"As a manifestation of Mr Folau's religion, he is compelled to communicate the word of God and the message contained within the Bible, the doing of which he considers to be a loving gesture to others," Folau's legal team said in its application to the Fair Work Commission.

"What he will say is, OK, I entered into that contract and the code, but I'm protected by discrimination law, in this case the Fair Work Act," Professor Anthony Forsyth, an expert in workplace law at RMIT University, told news.com.au earlier this week.

"That protects my right to practise my religion, and you can't dismiss me for exercising my right to practise my religion, to express my religious views."

AND RUGBY AUSTRALIA'S ARGUMENT

Rugby Australia will counter Folau violated his contract by contravening the code of conduct he agreed to follow as one of its employees.

Many businesses have similar codes of conduct; there is a good chance you agreed to follow one when you signed your own employment contract.

"What Rugby Australia will be arguing is that he's entered into a contract to play for them, which includes being covered by the players' code of conduct," Prof Forsyth said.

"The code of conduct imposes obligations which are quite typical of many employers these days, including not engaging in behaviour that is disrespectful or reflects badly on the employer.

"Their code also talks about not being offensive in the way you engage in public debate.

"They'll say that's the contract he entered into, and that by posting the things that he's said about homosexuals and others going to hell, he's breached the code."

You can read Rugby Australia's full code of conduct here. But to summarise the main points, it requires players to treat everyone fairly and with dignity regardless of sexual orientation, use social media "appropriately", and not act in a way that adversely reflects on rugby or brings the sport into disrepute.

Rugby Australia will also point out CEO Raelene Castle had previously spoken to Folau about his social media use in the wake of an earlier Instagram post, back in April of 2018, which again said gay people would go to hell.

"They'll say that he'd been on notice previously about not doing this — it came up last year — and that he persisted in the offending behaviour," Prof Forsyth said.

WHAT HAPPENS IF THE CASE HEADS TO COURT

If the case does end up in court, it will set a crucial precedent in employment law one way or the other.

That is because the conflict between an employer's right to impose standards of conduct on its workers and an employee's right to religious expression has never really been tested in court before. We don't know how far Folau's rights extend in this situation because there is no existing legal precedent.

"We don't really have any case law specifically dealing with it, so the question for the court is going to be: Is it encompassed within the protection of religion that a person is therefore able to say whatever they think, or quote from the Bible in any way that they like, publicly, in the way that he has done here?" Prof Forsyth said.

"Folau argues he's compelled by being a Christian of the kind that he is, I'm compelled to preach the word of the Bible and the world of the Lord. That's part and parcel of my practising of my religion.

"And unfortunately, we just don't know from case law because there haven't been cases on this, whether the right to practise your religion extends that far."

The most relevant prior examples we can point to are a few cases where employees tried to argue they were protected from political discrimination after being fired for airing views contrary to their employer's code of conduct.

"Employers have generally been pretty successful through these codes and policies at encroaching on the private activity of employees," Prof Forsyth said.

"What we're now starting to see, and still hasn't been properly tested yet, is can employees use discrimination law — my right to express my political views my employer might not like, or my right to say what my religion says I should say — as a basis for protecting me from being turfed because I've said what I think?"

You might recall the case of former SBS sport reporter Scott McIntyre, who was fired after posting a series of controversial tweets about Anzac Day in 2015.

McIntyre claimed it was an unlawful termination before eventually settling. And that's the problem — these cases keep settling out of court, so no judgment is reached and no precedent is set.

Prof Forsyth believes Folau and Rugby Australia will end up settling as well.

"Obviously, these settlements are always without any acceptance of liability and they're confidential, but you've got to think about the commercial pressures they're under," he said of the sport's governing body.

"How long would they want the circus to go on? From Rugby Australia's point of view, they're looking at the possibility of at least a few more months of this kind of publicity, and it's not very good for their brand, so I think there are commercial reasons why they would want to settle it.

"And then there's also, always in these cases, there's the risk they could lose."