The Cur­rent State of Play in the Israel Folau Case

What pro­ceed­ings has Israel Folau initiated?

It has been wide­ly report­ed that Israel Folau has com­menced pro­ceed­ings with the Fair Work Com­mis­sion (FWC) alleg­ing a breach of sec­tion 772 of the Fair Work Act (Act) for unlaw­ful ter­mi­na­tion of his employ­ment with Rug­by Aus­tralia (RA) on the grounds of reli­gion. Unlike court plead­ings, and con­sis­tent with the FWC approach in such mat­ters, the appli­ca­tion is not avail­able to the media or public. 

Some reports have also referred to the pro­ceed­ings includ­ing a claim for breach of contract. 

While a claim for breach of con­tract will almost cer­tain­ly be a fea­ture of the case if it pro­ceeds beyond the FWC, the source of the juris­dic­tion of the FWC is the Act and it is unable to enter­tain such claims (although an exam­i­na­tion of con­trac­tu­al terms may be rel­e­vant in any con­sid­er­a­tion of a breach of the Act).

How will the FWC deal with the proceedings? 

The role of the FWC is con­fined to con­cil­i­at­ing (medi­at­ing) the mat­ter. It will not con­duct a hear­ing or make any sub­stan­tive orders in the cur­rent proceedings. 

The con­cil­i­a­tion process before the FWC is a man­dat­ed step before com­menc­ing pro­ceed­ings in the Fed­er­al Court in which unlaw­ful ter­mi­na­tion is pleaded. 

It might come as a sur­prise to those unfa­mil­iar with the process that the usu­al prac­tice of the FWC for mat­ters involv­ing ter­mi­na­tion is for there to be, at least ini­tial­ly, a tele­phone con­cil­i­a­tion using one of the FWC staff con­cil­ia­tors. This approach is ordi­nar­i­ly adopt­ed even when the case involves high pro­file indi­vid­u­als or has gar­nered sig­nif­i­cant media atten­tion. (Pre­sum­ably con­sis­tent with the view that the process­es of jus­tice should be blind to such considerations.)

That said, if the mat­ter does not set­tle at the tele­phone con­cil­i­a­tion there may be an oppor­tu­ni­ty for a face-to-face con­cil­i­a­tion before a mem­ber of the FWC

What are the steps after the FWC

If the mat­ter does not resolve before the FWC then it will issue a cer­tifi­cate to that effect and the mat­ter can then pro­ceed, at the elec­tion of Folau, to the next stage, which Folau has fore­shad­owed will be the Fed­er­al Court. 

After a deter­mi­na­tion by the Fed­er­al Court there is then the pos­si­bil­i­ty of appeal to the Full Court of the Fed­er­al Court (com­pris­ing three judges) and then the High Court of Australia. 

Before the High Court con­sid­ers the mer­its of the mat­ter in a sub­stan­tive man­ner the par­ty appeal­ing the deci­sion below needs to be grant­ed spe­cial leave by the court. 

The fact the case is a talk­ing point among many Aus­tralians and is the sub­ject of sat­u­ra­tion cov­er­age in the media does not, of itself, mean the High Court will grant such leave. The fact it is of inter­est to the pub­lic does not make it a mat­ter of pub­lic impor­tance” for the pur­pose of the spe­cial leave application. 

Will the case cost $3 million?

The (now defunct) GoFundMe and sub­se­quent Aus­tralian Chris­t­ian Lob­by (ACL) crowd­fund­ing pages set a goal for legal costs for the case of $3 million.

There is, as far as I can deter­mine, no specifics pro­vid­ed of how this esti­mate of costs was arrived at nor any ref­er­ence to any esti­mate pro­vid­ed by any lawyers act­ing for Folau to him or for the pur­pose of the crowd­fund­ing exercise. 

To give some per­spec­tive, on the ACL crowd­fund­ing page, ref­er­ence is made to Folau’s actu­al legal costs for the rel­a­tive­ly exten­sive RA inter­nal process (which includ­ed a mul­ti-day hear­ing before a RA pan­el con­sist­ing of two senior coun­sel with exten­sive expe­ri­ence in employ­ment law and a sports admin­is­tra­tor) as being $100,000.

Esti­mat­ing legal costs is, giv­en the vagaries of lit­i­ga­tion, an inex­act sci­ence even when a lawyer has exten­sive infor­ma­tion and instruc­tions about a case, let alone when try­ing to esti­mate like­ly costs from the rel­a­tive­ly lim­it­ed mat­ters in the pub­lic domain. With that qual­i­fi­ca­tion in mind it is, how­ev­er, dif­fi­cult to con­ceive of how a case of this type could, even going all the way to the High Court, ulti­mate­ly cost as much as $3 mil­lion or close to it. Var­i­ous lawyers have pub­licly come for­ward to opine that the like­ly cost of the case is sub­stan­tial­ly low­er than that amount. I agree with that assessment. 

Is the Folau case a good test case”?

At the time of writ­ing, the crowd­fund­ing efforts on behalf of Folau have raised in excess of $1.8 mil­lion. Set­ting aside the mer­its of the mat­ter, there is no doubt the case has struck a chord with many in the Aus­tralian community. 

A recur­ring theme of talk­back radio calls and social media posts, from those who say they have donat­ed, is that they are moti­vat­ed by a con­cern that employ­ers are over­reach­ing when it comes to per­son­al beliefs of employ­ees and the expres­sion of those beliefs, with Folau’s sit­u­a­tion con­sti­tut­ing the start of a slip­pery slope and his case being an ide­al way to put this issue before the courts for a defin­i­tive deter­mi­na­tion to pro­tect the inter­ests of all employees. 

Con­cerns about employ­ers unjus­ti­fi­ably encroach­ing on the pri­vate lives of employ­ees has unit­ed peo­ple across the polit­i­cal and philo­soph­i­cal divide. Var­i­ous legal com­men­ta­tors (includ­ing myself) have writ­ten about the risks of over­reach from employ­ers who might include con­trac­tu­al terms or pro­mul­gate and imple­ment codes of con­duct that pur­port to reg­u­late out of hours employ­ee con­duct (includ­ing social media posts and oth­er forms of expres­sion) that has no or min­i­mal nexus with the legit­i­mate inter­ests of the employ­er. The employ­er’s pre­rog­a­tive to gov­ern out of hours employ­ee con­duct has lim­its (as notably set out in the deci­sion of RoseTel­stra Cor­po­ra­tion Lim­it­ed (1998) AIRC 1592). 

The Folau case, how­ev­er, is like­ly not going to be an ide­al test case to deter­mine the lim­its of the pre­rog­a­tive of employ­ers to reg­u­late the out of hours con­duct of employ­ees. Test cas­es are ide­al­ly the best exam­ple of a group to whom the ulti­mate find­ing will per­tain, in this con­text being employ­ees. Israel Folau was an atyp­i­cal employ­ee. As a pub­lic fig­ure, it will be dif­fi­cult for Folau to argue that his post was done in a pri­vate” capac­i­ty, or that the post could have noth­ing to do with RA because it is some­thing he did off-duty”. The nature of the duties asso­ci­at­ed with his role, which did not begin and end on the rug­by field, means his case is dif­fer­ent to the aver­age” or nor­mal” employ­ee who would be in a stronger posi­tion to argue that their per­son­al con­duct has no rea­son­ably arguable con­nec­tion with their employment.

A bet­ter test case to estab­lish the para­me­ters of an employ­er’s pre­rog­a­tive to reg­u­late an employ­ee’s pri­vate con­duct is an employ­ee who is nev­er called upon to pub­licly rep­re­sent their employ­er, can estab­lish a clear demar­ca­tion between their pri­vate social media account and employ­ment and has no broad­er oblig­a­tion to main­tain the rep­u­ta­tion of their employ­er. A case involv­ing such an employ­ee who has their employ­ment ter­mi­nat­ed for express­ing views or beliefs would like­ly be more instruc­tive in estab­lish­ing the true lim­its of the rel­e­vant employ­er prerogative. 

Ulti­mate­ly, the case will like­ly turn on the very spe­cif­ic terms of Folau’s con­tract and the RA Code of Con­duct rather than any broad­er prin­ci­ple of reli­gious free­dom or free­dom of speech.

While the Folau case is present­ly a mat­ter of great inter­est to the media and many in the gen­er­al pub­lic, it is like­ly to dis­ap­point as a case of endur­ing legal sig­nif­i­cance which sets a prece­dent for all employees. 

A worth­while debate

The Folau case has been the cat­a­lyst for a very inter­est­ing and impor­tant pub­lic debate about the appro­pri­ate lim­its of an employ­er’s pre­rog­a­tive to reg­u­late the pri­vate lives of employ­ees. The appro­pri­ate bal­ance between the rights of employ­ers and free­doms of employ­ees will like­ly be a fea­ture of robust dis­cus­sion and employ­ment law cas­es for some time to come.