This is the question that is making the news at the moment with Israel Folau, one of our most successful Rugby Internationals,  having his contract with Rugby Australia terminated.

Folau’s contract was terminated because he wrote a post on Instagram warning homosexuals, adulterers and others that hell awaits them and that they should repent.

Rubgy Australia ended Folaus’ contract because those comments contravened their Code of Conduct.  The Code of Conduct basically requires all players to treat everyone equally and with dignity regardless of their sexual orientation.  Players are not to use social media (such as Instagram) to breach these standards.

In response to his sacking, Folau has brought a claim against Rugby Australia under s772 of the Fair Work Act.  He alleges that his sacking was unlawful because he was terminated on the basis of his religion.  Folau is claiming $5m in compensation and $5m in lost income.

Rugby Australia’s position is that Folau was sacked, not because of his religion, but because he breached the Union’s Code of Conduct.  Increasingly over the years, the courts have been prepared to side with employers over control of an employee’s private life where there is an express code of conduct.

For Folau to be successful he has to show that making the Instagram post was an exercise of his religion.

What we now have is a dispute between employment contract law and protection against discrimination on the basis of religion.  Is an employer allowed to terminate an employee because they have quoted the Bible?   Does an employee have the right to say anything they like as long as it is based on their religion?  This will feed into the debate regarding religious freedom which has been bubbling away over the past 18 months.

Ultimately the court is going to have to decide whether Folau was terminated because of his religion or whether he was terminated because he breached his employer’s Code of Conduct.  Will religious freedom override employer control of employees’ private lives?  Whichever way the court decides, it is going to have a significant impact on a much wider range of employees than merely Rugby Union players.

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