A team of the sassiest spin doctors can’t help Rugby Australia. They lost on Wednesday. Big time. It was an old-fashioned shellacking not seen since the Wallabies lost to England in the World Cup quarterfinal this year. Given that Westpac boss Brian Hartzer fell on his sword for a disaster he didn’t know about, surely RA boss Raelene Castle should resign for a disaster she personally orchestrated.
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Put it this way. Earlier this year, Israel Folau, who was sacked by RA for posting on social media his religious beliefs, said: “First and foremost I am hoping for an apology from RA and an acknowledgment that even if they disagree with my views, I should be free to peacefully express my religious beliefs without fear of retribution or exclusion.”
Folau’s solicitor, George Haros, said an apology would “come a long way to resolving the dispute”.
That was in August. Castle responded by saying RA would not apologise to Folau.
On Wednesday afternoon, following marathon mediation negotiations, RA wholeheartedly apologised to Folau. In fact, the humiliating settlement overseen by Castle saw RA “acknowledge and apologise for any hurt or harm caused” to both Israel and his wife, Maria. It reads like a mea culpa from RA for being part of the pile-on that Maria endured when she publicly supported her husband during this battle.
Folau received money from RA, too. That’s in addition to the $2.1m fighting fund to cover his legal expenses from Australians who support Folau’s right to express his religious views, even if many — like me — disagree vehemently with his views. That, after all, is the real test of our commitment to freedom of expression, and religious freedom, in a liberal democracy.
The money left over after legal costs will now be refunded.
It’s a safe bet that Folau received a decent sum, too. A source close to the litigation confirmed to The Australian it was a multimillion-dollar settlement. Why else would Folau settle, given what lay ahead?
Folau’s legal team, led by Stuart Wood QC, intended to call Pacific Islander members of the Wallabies to give evidence that they told Castle that RA’s treatment of Folau was causing them great distress. In other words, entirely contradicting Castle’s claims that Folau’s actions were the cause of sinking team morale.
Folau’s team could have called Qantas boss Alan Joyce too, to determine who was calling the shots, potentially encouraging RA to breach section 772 of the Fair Work Act, which prohibits an employer from sacking an employee for unlawful reasons, including a person’s religion.
Just as it is clear that Folau settled because he has walked away with a stonking big win — an apology and a healthy sum of money — it is equally clear that RA rolled over because it couldn’t bear a court case. And another year of being reminded of its hopeless mishandling of this matter.
And imagine the relief on Kate Eastman’s face on Wednesday afternoon. Folau’s team was set to argue that the Sydney barrister’s role in the original tribunal hearing that led to Folau’s sacking raised questions of bias, or perceptions of bias. Eastman, a human rights lawyer, has a long history of supporting LGBTI causes. Good on her, that is her business. But her inclusion on the tribunal to sit in judgment on a devout Christian was a silly stunt that backfired badly.
Speaking of human rights, it’s high time that freedom of expression was reinstated as one of our most fundamental human rights. But that will have to wait.
Though Wednesday’s confidential settlement is a terrific win for Folau, some bigger questions remain unanswered in strict legal terms. A legal determination is still needed so that workers in this country know if they can be terminated, more or less at will, for expressing their religious beliefs under vaguely drafted, and subjectively interpreted, codes of conduct.
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