Folau sacking drags religion into political spotlight

Rugby Australia boss Raelene Castle issued Folau with a high-level breach notice soon after his April 10 posts. She cited previous transgressions and the discussions she had with Folau about the code’s social media policy  before he signed a four-year contract extension worth $1 million a year.

There was no specific social media clause in Folau's  contract, but Castle cited the policy and said the governing body wanted to terminate the contract.

After a three-day hearing before an independent panel, the breach was affirmed earlier this month, and Folau's sacking was announced on Friday.

Folau has been urged by supporters, such as broadcaster Alan Jones, to challenge any disciplinary action.

Josh Bornstein, a workplace law expert at Maurice Blackburn says the case is reflective of employers' growing encroachment into their employees’ lives outside of work through codes of conduct.

Brand ambassadors

Bornstein says employers demand workers not post anything negative or that might bring the company or organisation into controversy, regardless of whether such views are related to their job or not.

“They are premised on the view that employees are brand ambassadors 24/7,’’ he says.

By linking an employee’s conduct to a broad corporate identity, employers can extend their reach into employees’ personal lives on the grounds there is a "connection" to the workplace.

“If someone filmed him in church quoting from the Bible and put it on social media, he’d still be in the same position,” Bornstein argues.

In March, the High Court heard an appeal (Comcare v Banjeri) over the dismissal of a public servant for posting anonymous tweets that were critical of Immigration Department policy. The decision, which is expected in coming months, will provide some guidance as to how far that reach extends.

University of Sydney associate professor and discrimination law expert Belinda Smith says that if Folau wants to run a religious discrimination case, his only option is the Fair Work Act and its largely untested unlawful termination protections on grounds of religion.

Political overtones

In an unlawful termination case, Smith says: “as long as an employer can prove that they would treat anyone else who behaves that way the same [they are generally within the law]”.

"The question is not why did Folau do it. The question is why did the employer do it. The employer basically has to rebut the presumption that it was Folau’s religion that drove the termination and they do this by providing evidence of a legitimate reason - that he had breached the code of conduct.”

It has perhaps been lost in the shortened version of this saga that Folau’s social media activity had political overtones. Indeed, the scripture posts came a day after the Tasmania government said it would legislate to allow gender neutral birth certificates.

The first was on Twitter when he posted these words above a screenshot of a report on the decision : “The devil has blinded so many people in this world, REPENT and turn away from your evil ways. Turn to Jesus Christ who will set you free.”

Two hours later – at 2.18am – came the words of advice for “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”.

However, in his battle with Rugby Australia, Folau gets no assistance from the implied freedom on political speech derived from the constitution. It only acts a restriction on government action and legislation.

The freedom could however be used as a shield if someone, perhaps a gay person, chose to launch a discrimination complaint in Tasmania. In that state  – unlike NSW – it is unlawful to offend or insult groups based on their sexual orientation.

Folau says he will accept God’s will no matter what the outcome. But he might have to deal with the judges on earth first.