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Rugby - Israel Folau

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  • #31
    Originally posted by KW. View Post
    Rugby Australia could be in trouble. Interesting that anti-Christian hysteria is occurring all over the world.
    https://www.stuff.co.nz/sport/rugby/...igious-freedom

    "This was about a failure of common sense. At the outset of the matter in 2014, the university had overreached and overreacted. It effectively purported to restrict Ngole from expressing his religious views in any public forum. The implication was that a professional should only express controversial religious views in absolute privacy.

    The court rightly pointed out that, if correct, no Christian would be secure in any profession, let alone Muslims, Hindus or Buddhists. Further, Ngole's expulsion was disproportionate, given that the posts were expressions of religious and moral views that were based on the Bible."
    The author, John Steenhof, is an evangelical christian. It may pay to re-read the article with that filter on. Even he admits, albeit many paragraphs deep, that British court decisions are not "binding" on Australia.

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    • #32
      Originally posted by Hectorplains View Post

      The author, John Steenhof, is an evangelical christian. It may pay to re-read the article with that filter on. Even he admits, albeit many paragraphs deep, that British court decisions are not "binding" on Australia.
      I'm preferring the authors, Lord Irwin, Lord Haddon Cave and Sir Beatson. The judgement is 37 pages, but well worth while reading not once, but a couple of times.

      It is accepted legal convention that you are not bound by decisions from other lands. But in the absence of your own higher court native decisions you head off to other jurisdictions for their opinions. I'm not aware of any similar low or high court decision that is a case which is similar in fact to Folaus. Though if you wanted to you could point to some that skirt around freedom of speech / expression of religious views / international covenants etc.

      So much, easier, practical and reliable to refer to a similar case especially if its in the No. one preferred jurisdiction (the UK) followed by Canada / NZ, and then perhaps to the USA.

      Ngoble will be an excellent precedent case. Aside from the lack of first warning. the factual similarities run eerily parallel along a mirror image of each other.

      I would be very surprised if RA even troubled itself with going to Court. Their lawyers time will be much better spent crafting a settlement.

      RA's position is now (if it wasnt before hand) INMHO totally untenable.

      Ngoble has the benefit of giving us all some comfort in allowing our expression of religious views (should we wish to express those views) - no matter what the platform.

      Comment


      • #33
        Originally posted by MajorMoke View Post

        But in the absence of your own higher court native decisions you head off to other jurisdictions for their opinions. I'm not aware of any similar low or high court decision that is a case which is similar in fact to Folaus. Though if you wanted to you could point to some that skirt around freedom of speech / expression of religious views / international covenants etc.
        .

        While there may not be ONE case that mirrors the Folau situation. Summary dismissal cases are plentiful in the Aust Courts! Precedence from these cases will be more meaningful than reference to a UK verdict. While Folua may try to argue that this is an issue of "freedom of speech / expression of religious views / international covenants." I suspect RA will counter with a focus on where summary dismissal is well established to be justified; specifically where employees have partaken in:
        • wilful or deliberate behaviour inconsistent with the employment contract
        • conduct causing imminent and serious risk to a person’s health or safety or the employer’s reputation, viability or profitability.
        As an example Rust v Farstad Shipping (Indian Pacific) Pty Ltd (t/as Farstad) [2018] - SD is justified here employees can be shown to understand the ramifications of their breach. Folau understood the possible consequence of his choice.

        Whichever way. It is certain to be a long process! I just don't think this ruling is the decisive blow for Folau.

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        • #34
          Originally posted by Hectorplains View Post

          The author, John Steenhof, is an evangelical christian. It may pay to re-read the article with that filter on. Even he admits, albeit many paragraphs deep, that British court decisions are not "binding" on Australia.
          It may not be binding, but it just saved him a million dollars in legal fees by handing him a prepared argument :-)
          Don't drink and buy shares in a downtrend, you bloody idiot!

          Comment


          • #35
            Originally posted by Hectorplains View Post


            While there may not be ONE case that mirrors the Folau situation. Summary dismissal cases are plentiful in the Aust Courts! Precedence from these cases will be more meaningful than reference to a UK verdict. While Folua may try to argue that this is an issue of "freedom of speech / expression of religious views / international covenants." I suspect RA will counter with a focus on where summary dismissal is well established to be justified;
            I agree. This battle will be fought on two fronts. Folau wil battle on the 'right to express religious views" front and the Ngoble decision supports his argument.

            RA will battle on the justifiable decision front. While there is all sorts of precedent on that front there is not much on the use of social media in a homophobic / non-inclusive language.

            Originally posted by Hectorplains View Post
            specifically where employees have partaken in:
            • wilful or deliberate behaviour inconsistent with the employment contract
            • It has already been publicly established that RA are not relying on a breach of contract provision - because no such provision exists in the contract.

              They are relying on a high level breach of a Code of Conduct. The Ngoble case is useful here where it says "“An individual subjected to codes and policies must be able to ascertain exactly what he can and cannot do, and the extent to which those obligations extend beyond the workplace.”

              RA have already accepted he is allowed to make religious posts. The Ngoble case suggests that his posts were just that - religious posts. RA will try to show they were homophobic posts. The Ngoble decision decided the posts (which were much harsher in language and context than Folaus weren't homophobic.

              Originally posted by Hectorplains View Post
            • conduct causing imminent and serious risk to a person’s health or safety or the employer’s reputation, viability or profitability.

          This isnt RAs reason for firing Folau. Apparently he breached a Code of Conduct clause (S1.3) that undermined RA's values of "inclusivity".

          Though interestingly a Director has subsequently come out and said RA was under pressure from Sponsors to act and if they didn't there sponsorship stream was at risk. . This is not helpful to RA's case as it points to the real motivation behind the firing - but this wasn't the basis of the investigation nor the reason given for termination.

          Originally posted by Hectorplains View Post
          Originally posted by Hectorplains View Post
          employees can be shown to understand the ramifications of their breach. Folau understood the possible consequence of his choice.
          Not a hugely useful case to cite. Farstad had a documented and clear "zero alcohol" policy which Rust clearly broke.

          In contrast RA's policy is extremely vague - it says "Use Social Media appropriately." What the heck does that mean? They allowed Folau to publish religious views so clearly posting religious stuff is deemed "appropriate"

          RA's other code policy they will rely on is "Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby." So it is for RA to prove his post was indeed discriminatory. Again the Ngoble decision is useful here where it says "The mere expression of religious views about sin does not necessarily connote discrimination."


          Whichever way. It is certain to be a long process! I just don't think this ruling is the decisive blow for Folau.[/QUOTE]An English Court of Appeal decision will hold more weight than an Australian Fair Work Commission decision.

          How will RA prove that Foalus post was in fact discriminatory in substance? I have no idea. Especially when his post covers pretty much all sinners. And it can hardly be considered hateful when he also offered a way out via repentance

          Comment

            HLG

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