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The Israel Folau saga

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Pass it to Dunning!

Bob Loudon (25)
Onus would be on Izzy. Not an employment lawyer but i think it falls under the Fair Work Act:

351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Fair bit of discretion there. Izzy's lawyers would have to convince whoever is hearing the matter than his dismissal satisfies those points. Im sure there's oodles of case law about this.

The NSW anti-discrimination legislation doesn't mention religious discrimination in the workplace, mostly focusing on racial vilification.

There is no religious discrimination act, state or commonwealth. Interesting extract from commentary on discrimination act:

The Anti-Discrimination Act 1977 in New South Wales

Discrimination purely on the basis of religion is explicitly not prohibited by the Anti- Discrimination Act 1977 (NSW) ('the ADA'). Instead, complainants must formulate their complaints on the basis of race discrimination.
The ADA makes it unlawful to discriminate against another person on the basis of race. The word 'race', under the Act, is defined to include 'colour, nationality, descent and ethnic, ethno-religious or national origin'.
As a result, those who complain that they have been discriminated against on the basis of religion, must establish that their ethnicity coincides or is strongly associated with their religion.

He could argue that being Christian is intimately linked with being an Islander and this therefore constitutes racial discrimination.

I doubt he'd make that case successfully. Is there a business in Australia that has hired more Islanders as a percentage of their payroll than Rugby Australia.

The worst case scenario is he wins that lawsuit, because they won't give him any game time but he still costs them $1 million a season.
 

Derpus

George Gregan (70)
I doubt he'd make that case successfully. Is there a business in Australia that has hired more Islanders as a percentage of their payroll than Rugby Australia.

The worst case scenario is he wins that lawsuit, because they won't give him any game time but he still costs them $1 million a season.
I think the remedy would just be a payout, i doubt he would be reinstated.
 

Wilson

Michael Lynagh (62)
On the subject of a lawsuit the rugby ruckus has a good podcast with an employment lawyer up:

Listen to Special - Employment Law and Israel Folau - free speech or a sackable offence? by The Rugby Ruckus Podcast #np on #SoundCloud
https://soundcloud.com/therugbyruck...srael-folau-free-speech-or-a-sackable-offence

Basically it boils down to rugby proving he is sufficiently damaging their business, which is pretty simple at this stage. Only issue for them seems to be making sure the process is properly observed
 

gel

Ken Catchpole (46)
He doesn't have to go after them with regards to discrimination or freedom of speech or anything like that.

He can (and will) go them for not following their own procedures in firing him.
 

Strewthcobber

Andrew Slack (58)
"As a code we have made it clear to Israel formally and repeatedly that any social media posts or commentary that is in any way disrespectful to people because of their sexuality will result in disciplinary action.

"In the absence of compelling mitigating factors, it is our intention to terminate his contract."

They told him what would happen if he did it, he did it, and they announced that what they said would.happen is now happening.


They've engaged the integrity team to let Folau give his side as per process.

Whats the issue?
 

gel

Ken Catchpole (46)
You going to enlighten me?
I don't really have to. Its likely to play out in the real world shortly.

If RA go through with their intentions it's going to go to court, then mediation and with court costs, legal fees and the sizeable chunk of his contract they come to agreement to pay out, it's going to cost a bomb for them.

All because they opened their mouths publicly before they went through their proper processes.

That's what's likely to happen.
 

Slim 293

Stirling Mortlock (74)
All because they opened their mouths publicly before they went through their proper processes.



I don't think the statement they released jeopardises the process they're about to go through.........

So far they haven't done anything wrong.
 

A mutterer

Chilla Wilson (44)
i dont think this would be positioned as freedom of speech or religion. it is simply down to the fact that an employee knowingly breached multiple policies of his employer, which were agreed to as part of employment agreement, likely the social media and inclusiveness policies, after explicitly being warned against doing so after his first infringement. unless there is a provision for multiple infringements (ie more than 2)?

i doubt the strength of his position in taking this to arbitration as he was cautioned for the previous incident, and there is an argument given the strength of public outcry that he has brought the game and his employer into disrepute with a number of direct financial implications due to his breaches.
 

Kenny Powers

Ron Walden (29)
I think there are some sporting codes setting themselves impossibly high standards.

Drink driving you have put lives at risk and you should be scrubbed for life if these are the standards we are setting.

Bye bye Greg Inglis (speeding & drink driving), are you willing to do this Peter Beattie? Oh thats right he received a reference from the CEO.

It is going to be greatly amusing to watch Rugby League trying to get anywhere near Peter Beattie's standards.
 

liquor box

Peter Sullivan (51)
On the subject of a lawsuit the rugby ruckus has a good podcast with an employment lawyer up:

Listen to Special - Employment Law and Israel Folau - free speech or a sackable offence? by The Rugby Ruckus Podcast #np on #SoundCloud
https://soundcloud.com/therugbyruck...srael-folau-free-speech-or-a-sackable-offence

Basically it boils down to rugby proving he is sufficiently damaging their business, which is pretty simple at this stage. Only issue for them seems to be making sure the process is properly observed

How would you prove he has damaged the business?

If I was asked I would say he hasn't, his views have previously been expressed and known to the general public.

He then signed a new contract and RA allowed him to play with those beliefs.

the damage had already occurred and was allowed to continue by his presence in the team.
 

liquor box

Peter Sullivan (51)
I am not a lawyer so my thoughts are probably far from valid, but can a contract over-ride discrimination laws?

I think he has a basis to claim what he did was part of his religion, therefore he was fired for his religious beliefs.

I think the vast majority of people are aware that one of the tenants of Christianity is that if you sin then you will go to hell unless you repent.
I think the vast majority of people are aware that Homosexuality is a sin, otherwise why was the SSM debate framed as a "LGBTI v religion" debate.
I think most people are aware that many Christians believe that they should "spread the gospel", this appears to be what Irael was doing.

I think all of his actions can be rightfully described as falling under his religious beliefs and he should be protected from losing his job for expressing his religious beliefs.


I doubt he will succeed though because he is Christian and it seems that "other" religions seem to have more success with litigation.

I think there will be a payout behind closed doors and both parties will agree to part ways, RA will scared of losing.
 

Strewthcobber

Andrew Slack (58)
How would you prove he has damaged the business?

If I was asked I would say he hasn't, his views have previously been expressed and known to the general public.

He then signed a new contract and RA allowed him to play with those beliefs.

the damage had already occurred and was allowed to continue by his presence in the team.
You would demonstrate that if his contract wasn't terminated, the organisation would suffer significant losses by, say, showing how many sponsors would withdraw their money if he was to continue.
 
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