The case is interesting because it concerns the potential conflict between an individual's right to freedom of religion, and laws protecting against discrimination on the basis of sexual orientation. This conflict has been the feature of a series of high profile cases in the UK concerning employees who were dismissed because of conduct they attributed to their religious belief.
Folau, an Australian rugby player and self-described devout Christian, posted on his Instagram page on 10 April 2019 that hell awaits "drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolaters". Rugby Australia subsequently announced that Folau's comments breached its code of conduct, and that it would terminate his four-year contract of employment, purportedly worth A$4 million. Rugby Australia had previously spoken to Folau about similar behaviour on Instagram in 2018.
The parties failed to reach a settlement at conciliation last month before the Fair Work Commission, and Folau is now likely to commence proceedings in the Federal Court in the near future. Folau's claim is for unlawful termination under section 772 of the Fair Work Act, which prohibits the termination of employment for the reason of religion. It is reported that Folau may be seeking damages of up to A$10m.
Was Folau dismissed because of his religious beliefs?
All Australian states and territories prohibit by legislation discrimination on the basis of some form of religious belief or activity, except New South Wales (NSW) and South Australia - although South Australia prohibits discrimination due to religious appearance or dress. While no federal religious discrimination act currently exists, the Fair Work Act protects against termination or adverse action being taken against an employee on the basis of religion.
The central question in the Folau case is whether Rugby Australia dismissed Folau for the reason of religion. However, Rugby Australia may argue that Folau was not terminated because of his religion, but because he:
- breached his contract of employment by failing to comply with Rugby Australia's code of conduct; and
- breached his duty as an employee to obey the lawful, reasonable instructions of Rugby Australia.
Rugby Australia's code of conduct prohibits behaviour or conduct which may cause "offence to the general public's sensibilities" and which may "cause reputational damage to Rugby Australia". Rugby Australia may also raise the fact that Folau had been warned previously following his 2018 Instagram post.
Folau is expected to argue that his Instagram post was clearly an expression of his religion and religious beliefs and that he was dismissed because of it, in contravention of s772 of the Fair Work Act.