One of the country’s leading academics in employment law says Israel Folau’s potential court action against Rugby Australia could boil down to one key question.
Reports emerged on Wednesday that Folau had been in contact with Stuart Wood QC - one of Australia’s most experienced workplace relations lawyers - in a strong indication that legal action is looming.
The Sydney Morning Herald reports Folau hasn’t decided on legal action quite yet, but is leaning towards taking RA to court with Wood as his lawyer.
If the matter goes to the Supreme Court, it is believed Folau will sue on contractual grounds.
However he also has the option of contesting his termination at the Fair Work Commission on religious grounds.
Either way, Giuseppe Carabetta - a senior lecturer in employment law at Sydney University - says one key matter will be crucial.
“The live legal question is how far can an employer go in curbing an employee's activities outside working hours or personal lives and how do you draw that distinction in the first place," Carabetta told the ABC.
"Rugby Australia have been very careful in stating that their reason for terminating is because in their view he breached the code of conduct.
"As a general proposition, making the code clearer would help in this respect."
Players union takes action
The ABC report highlighted the need for Australia’s other sporting codes to clarify the wording of their code of conducts.
The rugby players' union (RUPA) has already acted in this respect, stating their intention to set up a committee to review how players can express their faith and beliefs.
RUPA said on Monday the decision to tear up Folau's Rugby Australia contract was "a sad outcome for Israel, his family, friends, teammates, opponents and all associated with rugby in Australia and around the world."
It also said Rugby Australia had not yet provided any clear parameters to the players specifying how it expects them to express their faith and beliefs in a way it considers acceptable.
"To address this, RUPA will immediately establish and undertake an Expression of Faith & Beliefs Review alongside its' players, incorporating advice from those with and without strong religious beliefs," RUPA said in a statement.
RUPA aimed to hold a first meeting of the review committee when the Super Rugby and World Sevens series seasons ended and planned to invite representatives of Rugby Australia and a Super Rugby, urging them to take part.
Folau was sacked for a high-level code breach for a religiously-motivated social media post which said hell awaits homosexuals, among others, after he had previously been warned following a similar post last year.
"RUPA appreciates the difficult position which this incident has placed on Israel's teammates and the broader professional playing group, and we will continue to support each RUPA member," it said.
"RUPA remains proud of its diverse playing group and is committed to empowering and supporting each of its members to have conviction to express their faith and beliefs confidently.
"Clearly, there remains a great deal of work to be done in relation to this subject, but what remains paramount and a non-negotiable is empowering all of RUPA's members to feel confident in understanding their rights and their responsibilities when expressing their faith and beliefs."