A cursory glance at the claim filed by Israel Folau in the Federal Circuit Court against Rugby Australia and the NSW Waratahs proves unexpectedly revealing. Whoever knew that Folaus Christian name isnt actually Israel, but Isileli?
Moreover, in the context of suggestions that Folaus exact claims includes him seeking damages north of $10 million, his pleaded claim is admirably brief. Six numbered paragraphs of pleaded facts, set out on a single A4 page.
In a way, perhaps its an indictment on the Australian legal system that Folaus prayers for relief wont end up before a judge, for another six months. Then again, a judge might not ever actually decide the case.
The proceedings could be resolved before the scheduled court date in February next year – either through mediation or otherwise. But you have to remember that Folau now has enough crowdfunded folding stuff at his disposal to pay the legal costs of each of the three litigants, including himself. In those circumstances, isnt it kind of a free hit to run the case to its finality?
Folau's pleaded case is straightforward:
- That he was employed by RA and the Waratahs pursuant to a fixed-term contract commencing on 1 January 2019, and ending on 30 November 2022
- That hes a devout Christian.
- That he maintained social media accounts not to parlay his sporting fame for any commercial purpose, but instead to lawfully communicate religious content
- That he maintained this channel of communication because of his faith, which itself forms the "very essence of his personhood".
- That on or about 10 April 2019 Folau uploaded some "religious content" to his social media accounts, as per his "usual practice". THAT the act of Folau so using social media was a "manifestation of his religion". THAT his conduct in using social media on that day in question was "benign"; not justifying any" punitive action" being taken RA or the Waratahs.
- That notwithstanding that it would be unjustifiably punitive to do so, RA and the Waratahs terminated Folaus employment, and by doing so contravened s 772 of the Fair Work Act.
- That in doing so, those organisations acted in a way which constitutes a breach of those organisations employment contract with Folau; relied on contractual terms which were unjust; and unreasonably restrained Folaus professional rugby career.
Its on that basis Folau seeks that he be reinstated to his former employment, compensation for lost earnings and other damages, an injunction preventing any repeat termination of his employment, and that his former employers pay a penalty of up to $63,000 (which Folau wants paid to him).
Now, section 772(1) of the FWA indeed says its unlawful for an employer to terminate an employees employment because of, or for reasons including, an employees religion. Which isnt to be confused with saying that the termination was merely unfair. Rather, its unlawful; illegal even.
Those provisions didnt become law in Australia just by accident. The FWA gives effect in Australia to International Labour Organisation Conventions 111 and 158, which were adopted in 1958 and 1982, and then ratified by Australia in 1973 and 1993. The ILO itself is an agency of the United Nations.
According to the ILO, such religious discrimination includes discrimination based on a persons expression of their religious beliefs. Which makes sense, in that it would be farcical to protect someone from being discriminated against on the basis of religion, but then to insist that they must practice their faith in a soundproof place of worship.
Which gets us to this somewhat pertinent question: was Folaus employment actually terminated by RA and the Waratahs for reasons including his religion, or not?
RAs and the Waratahs core contention will inevitably be that it was not. Rather, they would say his employment ended because Folau committed a high-range breach of RAs code of conduct for its players, the recommended sanction for which being termination.
It is debatable whether such an argument could hold water in circumstances where the very conduct determined to constitute a contravention of the code – Folaus evangelising via Instagram – is Folaus own summary of a passage from the Bible. Put simply, its a manufactured argument, to try to divorce the code of conduct breach from the issue of religion generally.
But that in itself raises another issue: for the purposes of the FWA and unlawful termination of employment, what exactly constitutes a religion? Thats an important question, when you consider that itd be obscene if anybody could purport to establish their own religion one day, and the next day say whatever they want with impunity, relying on an impervious religious freedom shield from adverse consequences.
For the last 20 years or so, tens of thousands of people in Australia have said on census forms that their religion is Jedi. That doesnt mean its actually a religion. Wheres the dividing line between a religion on the one hand, and a cult or sect on the other?
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