Why the Israel Folau case could set an important precedent for employment law and religious freedom

Former Wallabies rugby star Israel Folau is the latest in a series of Australian employees to lose their jobs because of social media posts in recent years.

Through a combination of common law rules and broadly expressed codes of conduct, employers have increasingly been able to control their workers’ private activities, including on social media.

But what makes Folau’s case different is that it sets up a clash between employment contract law and legal protections against discrimination on the basis of religion.

This could set an important employment law precedent for future cases like this, which is especially contentious at a time when religious freedom is being so fiercely debated in Australia.

What claim has Folau brought?

Rugby Australia terminated Folau’s employment contract last month after a tribunal determined his actions had breached the organisation’s code of conduct. The offending behaviour was an Instagram post by Folau in April, warning homosexuals (among others): “Hell Awaits You. Repent! Only Jesus Saves.”

Read more: Egging the question: can your employer sack you for what you say or do in your own time?

Folau has now brought a claim under Section 772 of the Fair Work Act alleging the termination was because of his religion and, therefore, unlawful.

The application argues that as a manifestation of his Christian religion, including regular church attendance and preaching, Folau is:

…compelled to communicate the word of God and the message contained within the Bible.

According to media outlets, he is claiming around A$5 million in lost salary and an additional A$5 million in compensation for other missed opportunities, including sponsorships.

What the Fair Work Act says in cases like this

Rugby Australia maintains that Folau was dismissed not because of his religious beliefs, but because he breached the player code of conduct.

The code is typical of that of many businesses. It requires players to treat everyone equally and with dignity, regardless of their sexual orientation; not to use social media to breach expected standards of behaviour; and not to make public comments or otherwise act contrary to the best interests of the game.

What makes Folau’s claim unique is that it depends on the court’s view of whether he was dismissed for reasons that included his religion, as specified under Section 772 of the Fair Work Act.

Read more: The 'gay wedding cake' dilemma: when religious freedom and LGBTI rights intersect

This claim could be easier for Folau to prove than another part of the Fair Work Act commonly relied upon in discrimination cases, Section 351.

Case law tells us that Section 351 requires the employee to prove an employer was motivated to discriminate against him or her because of religion. So, if an employer can point to an employee’s breach of their employment obligations as the reason for dismissal – instead of a discriminatory motive – then the employee’s claim fails.

In contrast, under Section 772, Folau only has to show that his religion was merely among the reasons for the dismissal.

However, in order to make his case, he will also need to demonstrate that his Instagram post constituted an exercise of his religion.

There are some big questions to be resolved here: how far does a person’s right of religious expression extend? Does being a Christian necessarily mean you can express the views of your faith in any public forum?

And does it allow Folau to express his views in the way that he did (noting that he says he was simply quoting from the Bible)?

Are there any precedents in case law?

Discrimination law doesn’t help us out much here.

Various state and territory laws protect a person from being discriminated against due to religious “belief”, “conviction” or “activity.” However, the case law shows that only certain characteristics of those who observe a particular religion fall within these protections, for example, a Hindu who practices fasting, or a Sikh wearing a turban. Previous cases haven’t dealt with the question of speech associated with a person’s religion.

For further guidance, we can turn to cases involving an employee’s right to express political opinions. But here, too, we find a bit of a mixed bag.

Academics seemingly have more latitude to express political opinions because their free speech rights are backed up by “intellectual freedom” clauses found in most university enterprise agreements.

Read more: Explainer: does Rugby Australia have legal grounds to sack Israel Folau for anti-gay social media posts?

This enabled former James Cook University physics professor Peter Ridd to successfully contest his dismissal for public comments critical of climate science. Academic freedom was also behind the claim mooted by La Trobe University’s Roz Ward, who was suspended in 2016 for social media comments criticising the “racist Australian flag,” before the university eventually backed down.

By comparison, federal public servants are subject to very restrictive policies curtailing their free speech rights.

However, the case of former Department of Immigration official Michaela Banerji shows that public service employees may be able to rely on the implied constitutional freedom of political communication. She won a workers’ compensation case on the basis that her dismissal for anonymous tweets criticising government policies breached her constitutional rights. The federal government is now contesting that ruling in the High Court.

New territory for employment law

Outside the academic and public sector contexts, we don’t yet have a definitive ruling on the apparent conflict between an employer’s right to control employees’ social media comments and the protections of religious or political freedom found in discrimination law.

Many of these cases settle out of court, such as Angela Williamson’s claim against Cricket Australia for unfair termination following tweets she sent that were critical of Tasmanian government policy on access to abortion.

It’s highly likely that a settlement will be reached in the Folau case, as well. But if it does go to trial, I think the employer’s contractual right to impose standards of behaviour will trump the rugby star’s right to express his religious views.

Court rulings have tended to favour employers seeking to enforce their behavioural policies and codes, including the regulation of employees’ private activities. The Folau case is an important opportunity to see whether the right to express religious views can halt the steady march of employer control in the era of social media.