John Smith wrote on Jun 30
th, 2019 at 3:07pm:
freediver wrote on Jun 30
th, 2019 at 3:05pm:
So far every occasion in which someone was fired like Folau was, they mounted a legal challenge and got paid out. Folau is most likely in line for a big payout. That's because illegal contract clauses cannot be enforced, even if you sign them. Not sure why we need to go over this. It has been done to death already.
I doubt it. I haven't seen one case of someone being sacked for posting something on social media and it being overturned. Every single case I have seen the courts have upheld the decision of the employer.
https://www.news.com.au/sport/sports-life/one-unresolved-legal-question-at-the-heart-of-israel-folaus-case/news-story/387b057b25ab325d35ea494b9ed087b3
Many businesses have similar codes of conduct; there is a good chance you agreed to follow one when you signed your own employment contract.
The thing that makes this case unique is also a central part of Folau’s counterargument — his religion.
That conflict, between an employer’s right to impose standards of conduct on its workers and an employee’s right to religious expression, has never been properly tested in court.
There simply isn’t a precedent to tell us how far Folau’s rights go in this scenario.
“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.”
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 — like so many others in the same situation.
“The problem is these cases keep settling, so we don’t get a decision,” Prof Forsyth said. “Us employment lawyers are desperate for a ruling.”
He said he was “almost as certain as I can be” that Folau and Rugby Australia would 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. Which would be even more unhelpful. And he’s got a massive compensation claim.”
Folau is seeking $10 million in compensation, about half of which is for his lost salary, with the other half covering missed financial opportunities such as sponsorships.
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