Israel Folau Claims Widened | Chances | Restraint of Trade?


israel folau has recently lodged his
statement of claim in his litigation against Rugby Australia his state would
actually significantly expands the grounds on which he’s suing I’m going to
try to evaluate the claims that he’s making and the likelihood of
succeeding at court now basically what’s happened here is
israel folau was terminated by Rugby Australia who is terminated following
social media posts which while religious in nature when negative about gay and
lesbian individuals rugby has claimed that violated the code of conduct
to which rugby australia players are bound there when he violated his contract
therefore he could be terminated Israel Folau is claiming amongst other things
that this was a religious expression and would be unlawful to terminate him for
it this has given rise to the litigation in this litigation is claiming
ten million dollars in damages and is seeking an apology he’s seeking this for
several grounds the state would have claimed basically makes for overarching
claims giving rise to this litigation I’m going to start with the most recent
and the newest and the one that expands his claims most significantly that’s
basically this termination was unlawful because it was an unlawful restraint on
trade basically the doctrine of restraint on trade arises where an
employer tries to prevent a former employee from working at a competitor it
typically applies with non-compete clauses the court can strike down one of
these non-compete clauses if it’s deemed to be unlawful and an unlawful restraint
on trade which the court will evaluate based on the circumstances of the case
Israel Folau is effectively claiming here that by being terminated by Rugby
Australia now prevents him playing for other Australian rugby union teams and
prevents him from playing at an international level because they’re not
eligible to play for any other international team therefore it’s a
restraint on trade however his claim is likely to fail and fail for several
reasons firstly he can still play for other codes in fact he has played for
the NRL before and there’s nothing to prevent him from this termination
playing in the NRL while the NRL has indicated it
might not want to hire him that’s a mother matter entirely
and in fact that reticence to hire him could be on shaky legal grounds but
that’s another issue secondly he could play overseas now
while playing overseas would still represented a griever restraint on trade
he can’t play in Australia and would have to play overseas that still is a
potential option which will lessen the restraint that would otherwise apply. Thirdly on a policy basis if Rugby Australia could not terminate anyone lest it give rise to
a restraint on trade that gives rise to a rather ridiculous situation
where rugby australia effectively has to keep hiring people because if they terminate
anyone then it is restraining their trade and therefore it would be unlawful
fourthly when the court is considering a restraint on trade and its lawfulness
the court considers all the facts of the situation this includes factors such as
was the individual paid extra because they would be restrained did the person
have legal representation what were the bargaining powers and
bargaining positions of the individuals in this contract
amongst other things in the israel folau situation
it appears he had legal representation or at least the representation from an
agent who is paid a significant sum of money at least in part because there are
limited options outside of rugby union furthermore he had a reasonable amount
of bargaining power meaning the rugby Straley couldn’t steamroll over him in
this situation so would be unlikely the court is going to find an unlawful
restraint on trade for those reasons nevertheless it’s not surprising his
bringing into the claim because it makes sense to bring in all of the claims that
are possible when watching the litigation such as this the second
underlying situation is these claiming that to the extent to which the contract
purports to prevent religious expression it’s unlawful basically what is claiming
here is any provision in the contract that prevent him expressing his
religious beliefs would be unlawful this is on solid legal grants some solid
legal grants was under the Fair Work Act the doctrine called adverse action
adverse action arises where an employer tries to prevent an employee doing
something or takes action against an employee on the basis of several things
such as their religion this is generally unlawful so if the employer were to try
to prevent an employee from expressing their beliefs that are religious that
would likely be unlawful under the Fair Work Act and therefore any provision in
the contract that tries to prevent this would also likely to be unlawful the
court is very unlikely to allow an employer to put in terms into a contract
that would get it around the Fair Work Act so therefore that solid legal
grounds that the contract can’t prevent an employee from expressing their
religious beliefs thirdly his claiming that regardless of this there was no
breach of contract what is effectively claiming here is there was no breach of
the code of conduct the rationale for this is the mere
expression of his religious beliefs isn’t enough to violate that code of
conduct the reason for that is the code basically goes toward the idea of
preventing discrimination against gay and lesbian people amongst other
individuals now there was no basis for the claim he’s arguing that he would
discriminate he’s basing this on for example the Felix Ngole case in that
case the United Kingdom court basically thought that the mere expression of
religious beliefs about gay and lesbian people doesn’t mean that one will per se
discriminate against those people therefore would be necessary for rugby’s
friendly to show more than merely the social media posts to give rise to the
claim they do discriminate therefore without more rugby strain it can’t show
that you violated the code of conduct merely on the grounds of the social
media posts that to some extent is likely to succeed because one can easily
see than the mere expression of these beliefs particularly religious beliefs
doesn’t mean that it’s going to go out and discriminate against people in the
workplace so rugby australia would likely need to adduce additional
evidence over and above the mere social media posts the show there would be
discrimination and therefore a violation of the code of conduct therefore Israel folau is on solid legal footing in that particular respect the fourth
overarching claim relates to section 772 of the Fair Work Act which basically
states that an employer cannot fire an employee for several grounds one of
which is their religion any such termination would be unlawful Israel
folau is claiming quite sensibly that a social media posts were an expression of
his religious beliefs therefore terminating before that
expression would be unlawful because of a violation of section 772 while section
772 does have some exceptions for example the employer can still fire the
employee if those religious beliefs were in some way contradictory to the to
necessary operation of the job so for example of Israel allows religious
beliefs somehow prevented him from being an effective rugby union player or rugby
union employee then he could still be terminated there would be an uphill
battle here because rugby strahle would effectively need to be arguing these
religious beliefs would a prevent him from playing rugby and be prevent him
from being an effective ambassador for rugby union that’s a tough one because
rugby stranger is effectively arguing then that any religious individual would
potentially be violating the ability to play
and therefore couldn’t be employed so it’s unlikely the Rugby Australia was
succeed in claiming that these religious beliefs were incompatible with him being
a rugby player because playing rugby doesn’t turn on a religion at all and
going out into the media and expressing religious beliefs is very unlikely to
give rise to a violation because under Section 772 it expressly tries to
protect people expressing their religious beliefs so it’d be a very
perverse outcome to state by the court that expressing religious beliefs is
somehow inconsistent with being an employee
therefore it’s unlikely that Israel Folau would lose under that section 772 claim as
I’ve indicated in other videos so those are the overarching claims that Israel
Folau making effectively a that there’s an unlawful restraint on trade
be there any contract for provision that would prevent him from expressing
religious beliefs is invalid seed there was no breach of the contract and D that
the termination was a violation of section 772 of the Fair Work Act and is
therefore unlawful now hope this has given you some background about the
recent statement of claim the swing foul the ways in which Israel Folau was
widened his statement of claim and the likelihood of his success when it goes
to court I hope the video has been interesting to you if it has regretted
to click the like and subscribe buttons and I hope to see you next time bye

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