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Folau set to challenge Rugby Australia in court

… while reports say he has reached out to NRL

Israel Folau has formally engaged lawyers to mount a challenge to his sacking by Rugby Australia, with a filing expected within two days, according to an Australian Financial Review report.

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The Fin reports that Folau has engaged commercial law firm Macpherson Kelley.

Folau has until the end of this week – 21 days since he was dismissed – to file a claim under the Fair Work Act. This is likely to involve claims of a breach of contract and unlawful dismissal. According to the Fair Work Commission: “Religious discrimination includes distinctions made on the basis of expression of religious beliefs or membership in a religious group. This also includes discrimination against people who do not ascribe to a particular religious belief or are atheists.”

Under section 772 of the Fair Work Act, an employer may not terminate an employee “for one or more of the following reasons, or for reasons including one or more of the following reasons” which include “race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin”.

However, a subsequent provision limits the prohibitions for a dismissal if (a) the reason is based on the inherent requirements of the particular position concerned; or (b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – the employment is terminated:

(i)  in good faith; and

(ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Although rugby claims to be “the game played in heaven”, the court is unlikely to see it as a religion. But there could be arguments about whether the inherent requirements of a Rugby Australia player’s job extends to care about what they post on social media.

The Fin reports that these religious protection provisions are largely untested. “Either way, the case will be a significant test of religious expression and how much employers can rely on broad codes of conduct and corporate brands to limit employees conduct outside the workplace.”

In a rival media outlet, the Daily Telegraph, Folau is reportedly making overtures to Rugby League’s NRL (one of the three codes of football he has played) to return to it. Reportedly, Folau has offered to have his social media posts vetted.

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