Izzy’s for real: I want apology, to play again

Israel Folau lodges court claim seeking apology, compensation and the right to ­resume his career.

Israel Folau wants an apology from Rugby Australia. Picture: James Elsby

Israel Folau wants an apology from Rugby Australia, financial compensation and the right to ­resume his career on the field as a champion player representing his country, according to his claim for unlawful termination.

The eight-page claim — lodged with the Federal Circuit Court in Melbourne yesterday by the rugby star’s new legal team — argues he was unlawfully dismissed under a key part of the Fair Work Act that disallows sackings because of a person’s religion.

The Folau termination dispute, which has fuelled national debate over religious freedom and spurred a campaign to strengthen related laws nationally, has been headed to court for a hearing after warring parties failed to reach a negotiated settlement in the Fair Work Commission.

MORE: Janet Albrechtsen writes Folau’s case will thunder with serious consequences for workplaces across the country | Profile — Meet Folau’s new best friend

Rugby Australia and the NSW Waratahs terminated Folau’s playing contract on May 17 after he posted “biblical teachings” on his Instagram account.

Folau’s new legal team of solicitors MacPherson Kelley and barrister Stuart Wood QC argue in the claim that there was “nothing unlawful about his conduct” and it “certainly did not justify Mr Folau losing his career and livelihood”.

As well as seeking compensation, interest, damages, injunctive relief and penalties that could run to hundreds of thousands of dollars, the Folau lawyers said he wanted an apology and full ­reinstatement.

Describing Folau as an elite sportsman and record tryscorer, his legal team said he should be playing for the NSW Waratahs and the Wallabies, including in the upcoming Rugby World Cup.

“His form and natural talent suggests he would continue to be a star player for both teams,” the unfair termination claim says.

Folau’s lawyers say he maintained social media accounts “not for any purpose connected to his employment” as a rugby player, but primarily for the purpose of lawfully communicating religious content.

I confirm I have commenced court proceedings against Rugby Australia and NSW Waratahs. Thank you to those who have supported me over this journey – it has meant so much to Maria and me. God bless. pic.twitter.com/Ojgw9uRw79

— Israel Folau (@IzzyFolau) July 31, 2019

“He did this because of his ­religious faith, which goes to the very essence of his personhood,” the Folau claim says.

The rugby player uploaded ­religious material “as was his usual practice” and management of both Rugby Australia and the NSW Waratahs “well knew” at the time they signed a new five-year ­contract with Folau last October that he was a devout Christian.

Folau, born to Tongan parents, was baptised and “born again” in December 2017. He is a member of Truth of Jesus Christ Church, a non-­denominational church at Kenthurst in Sydney’s northwest.

Folau was sacked for alleged “high-level” breaches of the professional player code of conduct after social media posts included declarations that homosexuals and other “sinners” would go to hell, and that those who were ­living in sin “will end up in hell ­unless you repent”.

Before the April 10 Instagram post that prompted moves to sack him, Folau had expressed views in line with his faith by criticising gay people and using terms such as hell, sin and repentance.

“There was nothing unlawful about his conduct, which was a manifestation of his religion and consistent with his freedom of religious expression,” the Folau claim says.

“This benign conduct, which the community accepts is a recognised fundamental human right and freedom, did not justify any punitive action being taken against him by his employer under the Player Contract or otherwise.

Folau’s claim was with the Federal Circuit Court in Melbourne yesterday. Picture: James Elsby

“It certainly did not justify Mr Folau losing his career and livelihood. Instead, the respondents did precisely that, and terminated the Player Contract. As a result, Mr Folau is no longer able to play elite rugby in or for Australia again.”

Included in the claim documents lodged is the May 17 letter sent to Folau from Rugby Australia chief executive Raelene Castle in which she confirmed an immediate termination of his contract after a rugby tribunal had found it to be the “appropriate sanction for your breaches of the code”.

Foreshadowing moves to sack him, a Rugby Australia statement issued shortly after the posts said while Folau was entitled to his religious beliefs, the way he expressed these beliefs was inconsistent with the values of the sport. “We want to make it clear that he does not speak for the game with his recent social media posts,” the statement said.

“Israel has failed to understand that the expectation of him as a Rugby Australia and NSW Waratahs employee is that he cannot share material on social media that condemns, vilifies or discriminates against people on the basis of their sexuality.”

The legal claim against Rugby Australia and the NSW Waratahs is based on section 772 of the Fair Work Act of 2009, which says an employer must not terminate a person’s employment for reasons including: “race, colour, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin”.

israel folau rugby australia legal

Singling out “religion” as the basis of Folau’s unlawful termination, his legal team said Rugby Australia had contravened section 772, acted in breach of contract, relied on terms that were unjust and had unreasonably restrained his playing career. The remedies sought from the court are all of those available: reinstatement, compensation, injunction, financial penalties and an apology.

With Rugby Australia sticking to its position that Folau’s behaviour amounted to a breach of contract, the code’s lawyers could be expected to rely on another part of section 772 that says a termination may be lawful, despite the accepted grounds for claiming unjust or unfair dismissal, if  “the reason is based on the inherent requirements of the particular position concerned”.

Rugby Australia has relied on contract provisions it claims favour its side based on the code’s stated position that it is expected of players as employees that they cannot share material on social media that “condemns, vilifies or discriminates against people on the basis of their sexuality”.

Folau’s dispute had previously involved attempted mediation in the Fair Work Commission between his former legal team and lawyers for Rugby Australia. Those talks broke down more than 10 days ago, paving the way for the battle to head to the Federal Circuit Court for a judge’s ruling.

At the time, Folau’s solicitor, George Haros, foreshadowed the next step to a court hearing, saying the rugby player’s side was disappointed at the lack of a settlement despite “numerous good-faith discussions”.

Folau, who has played 73 inter­national games, is the highest try­scorer in Super Rugby and fourth-highest tryscorer for Australia.