Israel Folau and Rugby Australia face crucial conciliation meeting
Israel Folau has emerged from his meeting with Rugby Australia “very disappointed” after the two sides failed to reach a resolution.
Israel Folau and Rugby Australia failed to reach an agreement in today’s conciliation meeting at the Fair Work Commission in Sydney.
Leaving the building shortly after 1pm alongside his legal team, Folau said he was “very disappointed” in the result.
“Look, we’re very, very disappointed about the outcome today,” he said. “But I’d like to thank all those who supported me in this time and I’ll continue to stand up for the freedom of all Australians.”
Folau’s lawyer George Haros told reporters: “It appears as though, unless things change, then we will be heading for court.”
The 30-year-old’s dispute with the governing body of rugby will now proceed to a formal hearing.
Rugby Australia CEO Raelene Castle avoided the media, taking the lift down to her car and driving off as soon as the meeting finished.
Folau’s team pushed through the throng of reporters at the front, eventually reaching two hire cars, a sleek black Mercedes van and a Holden Caprice.
Not realising the vehicles were waiting for him, Folau started to power down the street, but was quickly called back by his lawyer.
Israel Folau navigating a very heavy media pack after failing to reach an agreement with Rugby Australia. @newscomauHQ pic.twitter.com/4pEfGC6qw9
— Natalie Wolfe (@natwolfe94) June 28, 2019
Folau arrived hours earlier, at about 9.30am, to take the first step in his multimillion dollar legal battle. The football star drove up in a taxi with his legal team minutes before his conciliation hearing was due to start, dressed in a black suit, buttondown shirt and red tie.
Due to a heavy media scrum, the taxi sped away from the entrance to the building before the former Wallabies fullback and his team got out and were immediately surrounded by cameras and reporters.
“I’m hoping for an apology. I’d be happy with that,” Folau told journalists.
The sacked football star cracked a brief smile when a morning commuter told him he was praying for him.
“God goes with you brother,” the man said, before walking away.
“Thanks mate,” Folau replied, looking back and smiling.
Folau came through the building’s front entry.
Ms Castle again decided to avoid reporters and enter quietly through the building’s back entrance, parking beneath the Fair Work Commission.
News.com.au understands the building rostered on extra security guards today as a precaution for Folau’s high profile conciliation meeting. Those guards refused reporters entry to the venue.
As the football star and his legal team piled into the building’s lift, Folau turned and faced the cameras for a final time and let out a relieved laugh before the doors shut.
Level 14, where the meeting is taking place, is under such high security that it cannot be reached without a special pass.
A curious bystander, questioning why a media scrum was sitting on a Sydney street, joked he could hire Folau if the fired football star was looking for a job.
“I manage a cafe nearby, he can bring his resume into me if he wants to,” he said.
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.
Israel Folau arrives at the Fair Work Commission, the first step in his legal battle against Rugby Australia @newscomauHQ pic.twitter.com/NM5aMvqylN
— Natalie Wolfe (@natwolfe94) June 27, 2019
THE FIRST STEP FAILS
The first step in resolving that dispute was 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. Today it happened in person.
An independent conciliator moderated a conversation between both parties for about 90 minutes and attempted to help them strike a deal.
The conciliator’s job was 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. This wasn’t one of them.
WHAT HAPPENS NEXT
The matter now automatically proceeds 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. He has 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 as the case proceeds? 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.”
Folau has three demands. First, an apology and an acknowledgment that he was sacked for his religious beliefs. Second, the reinstatement of his contract. And failing that, compensation of about $10 million.
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.”
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