Folau Again

There was a very interesting piece in the Australian today by Janet Albrechtsen:

Israel Folau: Starting gun fired on challenge with huge implications.

TAFKAS does not want to talk about the specifics of the Folau matter again as they have been well ventilated.  What TAFKAS would like to do is highlight some of the things in Albrechtsen’s piece, as someone who is generally unfamiliar with the Fair Work Act and its provisions.

Albrechtsen closes her piece with this:

While this intersection ­between sport, sponsors, religious freedom and the law is sensational, the court’s decision will have profound consequences for workers beyond the rugby field.

Based on some of the things she writes in the piece, ABSOLUTELY!  So what did she write?  This paragraph particularly caught TAFKAS’ eye:

Get set for the mother of all battles. Critically, Rugby Australia will bear the onus of proving that it did not terminate Folau’s contract because of his religious faith. Presumably Rugby Australia will have to bring evidence from its management team, establishing who said what to whom, and what role corporate sponsors played in the decision-making process that led to Rugby Australia terminating Folau’s contract.

So essentially, the onus of proof of wrong doing has been reversed.  It seems that Rugby Australia’s “guilt” has been pre-determined and it is up to Rugby Australia to prove itself innocent.

Howz that for a game of soldiers.

Forget about Folau for a second.  Imagine you are an employer and you terminate someone.  That someone can apparently take you to the Federal Court where you have to provide that you terminated the person for valid reasons rather than the person proving you didn’t.  What the hell?

TAFKAS is sure that this is not the only reversed onus in Australian law, but what a disgrace.  What a disgrace.

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154 Responses to Folau Again

  1. Alan

    Rugby Australia is a state-subsidised monopoly provider of a national sporting competition which is supposed to be for everybody (not ‘everybody except Evangelical Christians’).

    It should be held to a much higher standard than any regular ’employer’.

  2. yarpos

    I dont have a problem with the employer having to demonstrate , which they should easily be able to do, that any dismissal is fair. The power and funding imbalance in most real world cases is massive, unlike Folau. Dont see it as a “disgrace” at all. The letting purity override common sense.

  3. C.L.

    There is no reversal of onus at all.
    The ARU (and Qantas) explicitly and infamously sacked him for expressing a religious opinion.
    Folau will point that out and argue it was illegal.
    The ARU will lie and claim it had nothing to do with the expression of his religious beliefs.

  4. Shy Ted

    On behalf of all taxpayers, thanks for another enormous, unnecessary bill.

  5. stackja

    RA are the problem.
    Solution? Dissolve RA.

  6. Iampeter

    So essentially, the onus of proof of wrong doing has been reversed.

    Yes welcome to the nightmare world of employment laws.
    But the real reason a politically literate person should oppose them is not the technicality of how they don’t make sense from a legal point of view, but the fundamental principle that they violate individual rights.
    The Folau saga could’ve been used as a good opportunity to do something about these terrible leftist laws but conservatives won’t have that.

    Imagine you are an employer and you terminate someone. That someone can apparently take you to the Federal Court where you have to provide that you terminated the person for valid reasons rather than the person proving you didn’t. What the hell?

    In before everyone comes here to tell you that these laws already exist! You just don’t get it Spartacus, these laws are already in place! Legal precedent! Other words!

  7. Up The Workers!

    Perhaps, for the avoidance of doubt, the ARU could formally bar all Christians, Hindus, Buddhists, atheists, agnostics, Hare Krishnas, Jehovah’s Whatnots, Seventh Dingo Adventurists, Mormons etc from all their venues; dispense entirely with troublesome Rugby, and just have displays of competitive head, hand or foot-loppings; public stonings; wife-bashings; female genital mutilations; one-way solo flight lessons for bound gays, competitive I.E.D.-making contests, and other such enlightened “progressive” 6th century Left-Wing entertainments?

    The A.L.P.B.C. and Nein News would bust a gut for exclusive rights.

  8. Des Deskperson

    ‘So essentially, the onus of proof of wrong doing has been reversed.’

    My understanding is that the unfair dismissal provisions of the Fair Work Act 2009 – s 361 IIRC – already operate under the principe of reverse onus of proof. Legally, at least, an employer has to prove that the dismissal was unfair.

    This may or may not be fair and reasonable, but that’s the way it has been for years.

    Folau’s salary, of course, excludes him from the seeking relief under of the FWA unfair dismissal provisions

  9. Bad Samaritan

    Des….and every other poster on this blog: Can you please proof-read before posting?….

    “My understanding is that the unfair dismissal provisions of the Fair Work Act 2009 – s 361 IIRC – already operate under the principe of reverse onus of proof. Legally, at least, an employer has to prove that the dismissal was unfair”

    WTF does this mean? Which word is the wrong one? Is it “employer” or is it “unfair”. WTF are you saying?

  10. Critically, Rugby Australia will bear the onus of proving that it did not terminate Folau’s contract because of his religious faith.

    That’s pretty much how it’s always been with the Fair Work Act. If management sacks someone, they have to have valid reasons for this and have that documented as part of their approved management processes (if they have any). That’s what all businesses must do. Like it or not, it’s the law.

    Folau is making a case that his dismissal was on religious grounds ie, his quoting of the Bible that a sponsor didn’t like and who forced RA’s hand. And given all that has passed that’s all that Folau can conclude. His lawyers will assert that RA, without any other available proof, that RA sacked Folau on religious grounds (if not under duress). Folau’s lawyers will present a case asserting such to the court. RA has to defend that and if RA has followed their approved processes, they have nothing to worry about.

  11. feelthebern

    If you terminate a contract based on a breach of contract, not a worry.
    If you terminate a contract where there has been zero breach, look out.
    You end up having to pay the contract out, plus open yourself up to costs, damages etc.
    Australia needs collusion laws with reference to employment.
    Example, the NFL settled with Kaepernick rather than go through discovery in a collusion case.
    There is zero doubt the club (sport administrators, sponsors, politicians etc) all communicated about not letting Izzy play.
    In the US, Izzy would be able to sue for collusion.
    In Australia, there is no such protections.
    There should be.
    But never will be.

  12. TAFKAS is a little late to the party.
    Now he understands why the HR departments are the most powerful departments and growing as we speak.

  13. feelthebern

    The other thing Izzy has going for him, is selective enforcement.
    There is so much precedent in Australia that it is illegal for your employer to selectively enforce contracts.
    Example, from quick reading there are 3 players in the World Cup squad who have all in the past pretty clearly breached their contracts (& that’s all we know publicly).
    Does Rugby Australia what to go through discovery regarding selective enforcement?
    That means going through every case of misbehaviour of players & administrators to show selective enforcement.
    Rugby Australia has to settle this pre trial.

  14. Chris M

    The ARU (and Qantas) explicitly and infamously sacked him for expressing a religious opinion.

    Yes. I’ve not been on Qantas since, waiting for their boss to apologies to Folau and all Christians first.

  15. Iampeter

    Critically, Rugby Australia will bear the onus of proving that it did not terminate Folau’s contract because of his religious faith.

    That’s not how it would normally work. Even Fair Work isn’t THIS bad.
    If Joe Blow had brought this complaint, Fair Work would ask questions about whether he was asked to stop posting and how often. They would ask if he committed to stopping then went back on that commitment, etc.
    They would then conclude this was a good firing and dismiss the complaint.
    There would not have even been anything to mediate.
    No one would ask anything about his “faith.” It’s not relevant to anything.
    But Folau is a public figure, stirring up an angry mob and a Christian lobby group is even calling on the government to intervene in his support. Basically leftist identity politics at its finest.
    This made it impossible for Fair Work to dismiss this out of hand as they would’ve done in any other case.

  16. feelthebern

    Unless you are forced to fly Qantas Link to regional Australia, every Qantas flight you look at is more expensive than Virgin.
    I’d fly Qantas if they were cheaper than Virgin & if they had curb side entry in Sydney like Virgin do.
    But they don’t.

  17. feelthebern

    I am surprised one of the parties has not leaked entire Izzy contract with Rugby Australia.
    With the appendices etc.
    The fact it hasn’t leaked from Rugby Australia seems to indicate that they are in the wrong.
    If it was there in black & white, Rugby Australia would have leaked it months ago.

  18. Roger

    TAFKAS is sure that this is not the only reversed onus in Australian law, but what a disgrace. What a disgrace.

    Maybe so, but reverse onus has existed in Australian industrial relations law since the early 1900s.

    There are various rationales for it that centre around the power imbalance between employee and employer. If an employer has acted within the law it would normally be relatively straightforward for them to demonstrate it from their records.

  19. Graham

    The basic prohibition in section 772(1) of the Fair Work Act 2009 is as follows:

    1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
    (a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;
    (b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
    (c) non membership of a trade union;
    (d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
    (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
    (f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
    (g) absence from work during maternity leave or other parental leave;
    (h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

    However there is a carve out from (f) if:

    ‘the reason is based on the inherent requirements of the particular position concerned’

    In Folau’s case it is difficult to see why it is an inherent requirement of being a rugby player that the employer should be able to dismiss an employee if he belongs to a particular ‘religion’ or that non- adherence to a particular ‘religion’ would an inherent requirement of being employed by RA (if indeed Folau was an employee of RA).

    The onus of proof issue arises under section 783:

    783 Reason for action to be presumed unless proved otherwise
    (1) If:
    (a) in an application in relation to a contravention of subsection 772(1), it is alleged that a person took, or is taking, action for a particular reason; and
    (b) taking that action for that reason would constitute a contravention of subsection 772(1);
    it is presumed that the action was, or is being, taken for that reason, unless the person proves otherwise.

    That is how the onus swings back on to RA to show that it did not terminate Folau’s employment for a prohibited reason.

    Spartacus can be indignant all he likes about the Act containing such a provision, but he will have to blame Rudd/Gillard. They were the ones who decided that employees deserved such protections from their employers, and that employers would have to show that they did not dismiss an employee for a prohibited reason.

    I will certainly enjoy seeing what RA has to say for itself on this topic.

    As the Currency Lad has pointed out in effect, their public statements to date seem to point to at least a reason for the dismissal being that Folau held inconvenient religious views and was inclined to profess those views in public. It seems sufficient to breach the section if one of a number of reasons for the dismissal was the religion of the employee.

    I find it difficult to believe that RA will be able to establish that Folau’s religion had nothing to do with his dismissal.

  20. Des Deskperson

    ‘WTF does this mean? Which word is the wrong one? Is it “employer” or is it “unfair”. WTF are you saying?’

    Mi spiace

    it should, of course read:

    ‘Legally, at least, an employer has to prove that the dismissal was NOT unfair.’

    I’m minding a two year old and posting at the same time. Maybe I should concentrate on the kiddie.

  21. The reverse onus applies to all of the General Protections provisions of the Gillard/Shorten Fair Work Act. This ‘adverse action’ concept has been very challenging for employers, however we have also seen some very successful uses of the provisions against trade unions. The reverse onus does not apply to terminations of employment per se, only to the General Protections, which include discrimination on the grounds of religious belief

  22. Robert Mc

    Critically, Rugby Australia will bear the onus of proving that it did not terminate Folau’s contract because of his religious faith.

    That’s the line being pushed in some of the media but it seems to have no basis in law. Maybe that’s a view they are being fed by the ACL and the lawyers they are paying on Folau’s behalf.

    Anyway, it is Folau who is bringing the action on specified grounds in the Federal Court, so the onus is on him to prove that he was dismissed, inter alia, for his religious views.

    The onus is not on Rugby Australia to prove they did not do so. They only have to prove that he breached his contract and was dismissed for that reason.

  23. Kneel

    If Joe Blow had brought this complaint, Fair Work would ask questions about whether he was asked to stop posting and how often. They would ask if he committed to stopping then went back on that commitment, etc.
    They would then conclude this was a good firing and dismiss the complaint.
    There would not have even been anything to mediate.

    You missed the bit where they ask if the “stop posting” request was reasonable and legal – as in, is it reasonable to ask someone to stop posting their firm religious beliefs when they are not working and are not representing themselves as an agent of the employer, and are such requests actually legal to make.

    I would suggest that it is NOT a reasonable request to make of the employee to put their own private life on hold for the rest of their term of contract because you don’t like what they say in their own name, where such comments have nothing to do with the work contracted for. It would be like saying “you can’t work for us because you don’t like the colour blue, and our uniforms are blue” – even though you are prepared to wear the blue uniform when working.

  24. Mater

    If Joe Blow had brought this complaint, Fair Work would ask questions about whether he was asked to stop posting and how often. They would ask if he committed to stopping then went back on that commitment, etc.

    They would likely also consider if these numerous requests were legal and moral.
    Try asking a Muslim employee (even multiple times) not to pray regularly during working hours because it impacts customer service, rosters, etc. How far do you think you are going to get in dismissing them, regardless of how many times you request it.
    Some employers ask their employees to do things which are either dangerous or illegal. Doing so multiple times doesn’t equate to a justification for dismissal.
    Hell, even the Military have the term ‘Unlawful Order’.
    Refusal to abide by an employers request, does not automatically equate to lawful dismissal.

  25. Mater

    If Joe Blow had brought this complaint, Fair Work would ask questions about whether he was asked to stop posting and how often. They would ask if he committed to stopping then went back on that commitment, etc.

    They would likely also consider if these numerous requests were legal and moral.
    Try asking a Mus l1m employee (even multiple times) not to pray regularly during working hours because it impacts customer service, rosters, etc. How far do you think you are going to get in dismissing them, regardless of how many times you request it.
    Some employers ask their employees to do things which are either dangerous or illegal. Doing so multiple times doesn’t equate to a justification for dismissal.
    Even the Military have the term ‘Unlawful Order’.
    Refusal to abide by an employers request, does not automatically equate to lawful dismissal.

  26. candy

    I guess it’s all too late for RA and Folau to go back in time and find a compromise with a solid indisputable contract so that he can play and everyone can be happy.

    Terrible management by the RA chief.

  27. And it should be noted that when people talk about a contract, it’s an employment contract, these are somewhat different to what are normally construed as contracts for services or products, or those considered as ‘contractors’.

  28. feelthebern

    Terrible management by the RA chief.

    Yep.
    She will be out of a job post this wrapping up.

  29. Bruce of Newcastle

    So essentially, the onus of proof of wrong doing has been reversed. It seems that Rugby Australia’s “guilt” has been pre-determined and it is up to Rugby Australia to prove itself innocent.

    Backwards. Folau’s ‘guilt’ is what RA is invoking. Beak will now determine if they are correct in law. Which seems unlikely given the evidence we’ve seen so far.

  30. Iampeter

    I find it difficult to believe that RA will be able to establish that Folau’s religion had nothing to do with his dismissal.

    It’s not that difficult. It simply wouldn’t come up. No one cares about the content of his posts, just that he was asked to stop posting them.

    You missed the bit where they ask if the “stop posting” request was reasonable and legal

    I didn’t miss it. It goes without saying.

    I would suggest that it is NOT a reasonable request to make of the employee to put their own private life on hold for the rest of their term of contract because you don’t like what they say in their own name, where such comments have nothing to do with the work contracted for.

    Well, first this means you are also on the left wing side of politics since you think that employers should get permission from government before firing people.
    But that aside, this is not what the Folau case is about.
    The Folau case is specifically about religious discrimination, which like I said, wouldn’t have even come up in the initial complaint hearing.
    There’s no case of discrimination here.

  31. feelthebern

    I didn’t miss it. It goes without saying.

    That’s why it’s heading to court.
    Moron.

  32. Leigh Lowe

    So essentially, the onus of proof of wrong doing has been reversed.  It seems that Rugby Australia’s “guilt” has been pre-determined and it is up to Rugby Australia to prove itself innocent.

    Howz that for a game of soldiers.

    Once again we have wannabe Perry Masons applying criminal standards to civil cases.
    OK.
    The “position of rest” was that the two parties had a binding contract.
    One party (RA) decided unilaterally (possibly with external encouragement) to terminate that contract.
    They, of course, bear the onus of proving why they did so.
    This is Contract Law 101, folks.
    If you don’t get it Spartacus, refrain from commenting.

  33. Rex Mango

    For years professional footballers have been signing up to contracts where they are, when not playing and putting their physical health on the line, expected to behave like monastic choirboys in their own time. No other profession would allow such obligations and about time a court examined whether these contractual conditions are onerous.

  34. feelthebern

    Release the contract.

  35. Rafiki redux

    Too much is made about a reverse onus of proof in a civil context. RA will present their case first and adduce evidence that they were not motivated by their dislike of Folau’s religious views. If the evidence is such that, taken at its highest, it would uld be reasonable to find that they did not, a practical onus will fall on Folau to adduce evidence that they were. In the end, the onus is not critical unless (as is rare) the court thinks the cases are evenly balanced. And Folau will need ti ensure that he calls evidence that he would be expected to call. Otherwise the Jones v Dunkel principles will work against him.

  36. DaveR

    The Albrechtsen article was interesting in that it seemed to completely kick to the kerb the ARU’s stance that Folau breached his employment contract including the Code of Conduct rules. She seems to imply that a court would not be concerned with that argument, and would mostly focus on the religious freedom aspect. I am not sure why she weights the two arguments so differently, but if she is right, then Rugby Australia have a very real risk in front of them.

  37. Rafiki redux

    I can supply a High Court precedent if anyone is interested. That is, when I can geto a library. At present, I am farting about at the Bowral Men’s Shed.

  38. Employer Burned

    Legal action has been a poor option for employers for a long time. Generally everyone settles. So any employee willing and able to wear the cost can be assured of a good result in court. However Folau is very highly paid and wants lots of money. That will affect his position since executives for example typically don’t get much unless the contract supports their case. Fair to assume rugby Australia looked at the contract before sacking him.

  39. RacerX

    I don’t know about reverse onus of proof TAFKAS but it makes perfect sense to me that an employer be required to show why they did sack an employee in an unfair dismissal case.

  40. Rohan

    Roger
    #3120497, posted on August 1, 2019 at 12:09 pm
    TAFKAS is sure that this is not the only reversed onus in Australian law, but what a disgrace. What a disgrace.

    Maybe so, but reverse onus has existed in Australian industrial relations law since the early 1900s.

    Yep. Had to front the old IRC during Workchoices (V1) and we had to prove that the dismisal was fair and lawful. It was demonstrated to be, but we were advised to pay a few weeks pay to make him go away quietly, so we did. Problem solved.

  41. JC

    . If the evidence is such that, taken at its highest, it would uld be reasonable to find that they did not, a practical onus will fall on Folau to adduce evidence that they were.

    Lol, so he was really fired because they loved him so much. That’s credible.

  42. DaveR

    In regard to your comment Iampeter,

    It’s not that difficult. It simply wouldn’t come up. No one cares about the content of his posts, just that he was asked to stop posting them.

    If that were true, all Folau would have to do is discover all the posts made by the other players (including private posts) over the same time period, and see if RA asked any of the other players to stop posting. It might be interesting to see what some of those other posts contain.

    Clearly, the content of Folau’s posts is critical to the dispute, and RA cared about the content so much they asked him to stop posting.

  43. dover_beach

    It’s not that difficult. It simply wouldn’t come up. No one cares about the content of his posts, just that he was asked to stop posting them.

    Sure, sure, if Folau had posted ‘Happy Mardi Gras’ he would have been terminated also.

  44. Iampeter

    If that were true, all Folau would have to do is discover all the posts made by the other players (including private posts) over the same time period, and see if RA asked any of the other players to stop posting. It might be interesting to see what some of those other posts contain.

    You mean, that’s what Folau would’ve actually done to begin with, if this was really a case of religious discrimination like he claimed.

    Also reminder: right wingers and capitalists would still support the right of a business to fire someone for ANY reason. You don’t have a right to a job, commies.

  45. JC

    Peter, you fucking dickhead. This is a matter of labor contract law – not a question of the right or not to a job. You’re mentally ill – seek help.

  46. dover_beach

    Re the issue of ‘reverse onus’, it works precisely as the onus of proof does in the criminal context. The state has to prove that the accused did Y. Here, it is the employer that has to prove that the employee did Z. What would be reverse onus would be requiring the employer to prove that they didn’t do what the employer was accusing them off. In both instances, whether the state or the employer, they are by rights required to prove their allegation against the citizen or employee, respectively. A moment of reflection, TAFKAS, was all that was necessary before you penned this pearl-clutching missive.

    I see above that C.L. is suggesting precisely this too. Great minds.

  47. dover_beach

    Correction: What would be reverse onus would be requiring the employee to prove that they didn’t do what the employer was accusing them off.

  48. Iampeter

    Sure, sure, if Folau had posted ‘Happy Mardi Gras’ he would have been terminated also.

    If they repeatedly asked him to stop posting and he repeatedly refused, and/or agreed then went back on the agreement, which is the actual issue that you’ve at no point understood, then yes.
    That’s the whole point.

    And all of you would’ve taken RA’s side if this has happened, focusing on the non-essential details of the content of his posts, in order to push your identity politics, like the clueless leftists you are.

    Conservatives are a parody of a political movement.
    Christian bakers have religious freedoms so can refuse service.
    Tech companies are public squares and will be forced to host content whether they like it or not. Too bad they’re not religious so they don’t get to run their business as they like!
    Christians can’t be fired! Religious persecution!
    If an atheist had been fired for making posts his employers didn’t like, which I’m sure happens daily, none of you would’ve said anything.
    And so on.

    There’s no understanding of politics.
    There’s no principles.
    There’s no coherence or need to not contradict yourselves on EVERYTHING .
    There’s no honesty – ie you all know this is a bad faith claim of religious prosecution. You all know that religious businesses don’t suffer from the same regulations, etc.

    It’s no exaggeration when I say that conservatives are the religious and politically illiterate arm of the left wing.

    That’s the most polite way to describe it.

  49. Iampeter

    Peter, you fucking dickhead. This is a matter of labor contract law – not a question of the right or not to a job. You’re mentally ill – seek help.

    Please stop projecting.

  50. Yo Dover. Let’s get this right. I get sued and I have to prove that I should not be sued. Or is the obligation to make a case on the person who makes the claim against me. Clutch on that.

    Can TAFKAS call you a moron and leave it for you to prove otherwise. Granted a challenge given some of your comments, but still.

    In your criminal example, the state makes the “claim”, states its allegations and is obliged to prove them. Perhaps you would prefer the other way?

  51. Buccaneer

    I see the resident sock puppet is still accusing everyone that has a counter point to his as being a lefty. Childish stuff.

    Regardless of reverse onus, RA informed the media that they were going to sack Folau before they had met with him to discuss the matter. I understand this is a requirement before they can progress to termination. Folau’s lawyers will have lots of examples of players exhibiting behaviours like urinating in public and worse who still received a meeting to discuss prior to proceeding to sacking. RA has an uphill task, they’ve handled this badly all around.

  52. Dr Fred Lenin

    Not that thing again? Surely we have had enough crap about the religous nut giving his opinion about poofs and sinners in general . We all know they are useless and if there is a hell ,they will be in it for etrernity , you could see this crap coming the minute that bastard turnbull cheated the poofter “marriage “act into law ,the thin end of the wedge . Like abortion on demand was the start of murdering full term babies ,and andrews “euthanasia. “ law is the beginningg of murder byy government decree . And legal marihuana is the beginning of drugs for all shops ,taxed to hell of course .politicans are ALL Scun .

  53. Steve

    I think there has been a hysterical overreach, possibly as a result of idealogical drivers – in other words, because a Christian did this, and it almost seems that Christians ( at least unofficially ) arent to be tolerated, the logic switched off and wild-eyed ideology took over. As such, they have made a complete mess of things coz they couldnt control themselves….or so it appears…..

    Funny thing is , as that a Christian, Ive commented this is a fire that God Himself has lit, and the more people try to put it out, the hotter it will burn…and I think it will consume all those on the wrong side of God. And its also allowing people to declate thier alliegances regards the alleged topic for the mans sacking. Watch this space…its going to get really really ugly I think……and this is actually a good thing, as fetid PC has rammed peoples faces into the dirt for a long time, so payback is going to come with a very very hefty bill……personally, spiritually and financially…….

  54. Bad Samaritan

    The QWERTY guy at QANTAS let ’em know he wanted Izzy’s head to roll….and so it came pass…

    “Israel Folau’s rugby career appears over after an independent panel backed Rugby Australia’s intention to rip up his four-year, $4m contract…….The three-member panel, comprising John West QC, Kate Eastman SC and John Boultbee AM, announced on Friday that it had decided to terminate” RA chose Eastman as their rep.

    Kate Eastman: “She has been involved in some high profile cases including The Tampa, David Hicks, transgender marriage, same sex marriage

    I suppose her decision as an independent arbiter came as a great surprise to RA, eh?

  55. I get sued and I have to prove that I should not be sued.

    Yes. If you get sued and go to court (if you can’t arrive at an agreement prior to that), the plaintiff will present their evidence as to why they have raised the lawsuit. It’s then up to you to dispute their case and/or provide your own evidence in your defence. If you fail to face the court (believing that you shouldn’t be sued), the court most likely will find for the plaintiff.

  56. dover_beach

    Yo Dover. Let’s get this right. I get sued and I have to prove that I should not be sued. Or is the obligation to make a case on the person who makes the claim against me. Clutch on that.

    You’re missing a step. The person making the claim, in the first instance, is the employer that has terminated X’s contract. If the employer is claiming that the employee has breached their contract, let them prove it. All Folau has done is request a hearing. Given the statements made by members of the RA board, etc., this is likely to be an impossible task. Loose lips sinks ships and all that.

    In your criminal example, the state makes the “claim”, states its allegations and is obliged to prove them. Perhaps you would prefer the other way?

    Not at all, I’m arguing that the employer and the state, in both instances, bear the same burden given they are making the claim against the employee/ defendant, respectively. They should bear the burden, not only because they are making the claim, but because they are also far better resourced, etc. than the employee/ defendant. Even the state provides an impartial hearing before a penalty (here, termination of the contract) is exacted. Folau received nothing of the sort.

  57. feelthebern

    Logic pretzel alert.

  58. dover_beach

    And the burden of proof that RA has to satisfy is the ‘balance of probabilities’. Hardly onerous.

  59. BrettW

    From 2gb Fordham show :

    The cousin of Israel Folau has been let go from his job at a Catholic school after he publicly expressed his religious beliefs.

    Until recently, 20-year-old Josiah Folau had been working as a boarding supervisor at his former school, St Gregory’s College in Campbelltown.

    “20th of July, Kate McClymont published two articles in The Sydney Morning Herald, where Josiah was quoted as saying “the Catholic Church is a synagogue of Satan”.

    He has since been let go from his employment at the Catholic school.

    When the school was contacted for comment, Headmaster Lee MacMaster said:

    “We have met with Josiah recently and in our discussions, Josiah has made the decision to discontinue his casual employment at St Gregory’s College. We respect Josiah’s privacy in this matter.”

    All for freedom of speech but totally agree with the school on this one. His comments directly relate to hois place of employment.

  60. Rafiki redux

    Graham at 12.10 explains why in relation to the question whether Folau was dismissed on religious grounds RA bears on onus of disproof. RA would go first in the issue of whether the presumption is dusolaced. My comment points out that this may not matter at the point where the court makes its findings of fact. Most of the comments here don’t grasp the points both of us made. JC’s comment is simply weird.

  61. Iampeter

    I see the resident sock puppet is still accusing everyone that has a counter point to his as being a lefty. Childish stuff.

    Pointing out the glaring issues with the conservative movement, issues that shouldn’t need to be pointed out if you knew what you were talking about, is not “childish stuff.”
    On the other hand, talking about a subject you know nothing about with the tone of an expert IS childish.

    Yes. If you get sued and go to court (if you can’t arrive at an agreement prior to that), the plaintiff will present their evidence as to why they have raised the lawsuit. It’s then up to you to dispute their case and/or provide your own evidence in your defence. If you fail to face the court (believing that you shouldn’t be sued), the court most likely will find for the plaintiff.

    That’s how it works in kangaroo courts, sure. That’s the problem that I think Spartacus is trying to point out.
    In a REAL court, when you sue someone for legitimate reasons, like defamation or breach of contract, you have to prove damages. If you can’t do that you’re case will be dismissed. You might even have to pay the defendants fees too. The plaintiff will certainly not automatically win by making some random accusations, nor is the onus on the defendant to address anything except specific claims of damages.

    Since firing someone, like hurting someone’s feelings, are not something you can sue someone for in a real court, leftists invented pretend courts instead and that’s how we get things like FWA and HRC.

  62. Tim Neilson

    Also reminder: right wingers and capitalists would still support the right of a business to fire someone for ANY reason. You don’t have a right to a job, commies.

    Poor old Iamashiteater. Mr ignorant sub-cretinous conceited imbecile strikes again.

    RA freely entered into a contract with Folau for four years.

    That is, they freely contracted away their rights (such as they are under current law) to terminate arbitrarily on short notice.

    Therefore this has nothing to do with whether, in general, the law should permit an employer to dismiss an employee for any reason.

  63. Tim Neilson

    Yes. If you get sued and go to court (if you can’t arrive at an agreement prior to that), the plaintiff will present their evidence as to why they have raised the lawsuit. It’s then up to you to dispute their case and/or provide your own evidence in your defence. If you fail to face the court (believing that you shouldn’t be sued), the court most likely will find for the plaintiff.

    That’s how it works in kangaroo courts, sure.

    That’s how it works in any court. Never heard of “summary judgement”?

    FFS stop utterly beclowning yourself with your flabbergasting displays of ignorance and irrationality.

  64. Rafiki redux

    Sorry. The unintelligible word should read ‘displaced’.

  65. Iampeter

    Tim, like JC, please stop projecting.

  66. Buccaneer

    Still being a sock puppet I see, taking two Posts from separate contributors and stitching them together in one post is fairly standard lefty tactic designed to avoid scrutiny of your real agenda. You deliberately strip posters here of context in an effort to delegitimise the whole blog. If you were really trying to hold people to account here you would recognise that contributors have a range of ideas and can take as much away as they contribute. You’d also provide proper argument not strawmen.

    Yes, Fwa, HRC and in some cases ohs laws are not structured with best intentions. Worse are appointments to judiciary who deliberately try to undermine rule of law by precedent. Little of this matters in the Folau case, due process wasn’t followed to sack him and the law as it stands says he has rights. Can’t set a precedent to let the employer off, don’t want him to win. Its Karma watching lefties like you squirm.

  67. I_am_not_a_robot

    Conflicting rights, ill-defined religious freedom vs. anti-vilification law may be beyond the scope of a court until legislation now under consideration is settled.
    It may be judged simply as a contractual dispute and since it’s unlikely that Folau will stop his online preaching it’s unlikely RA will be ordered to reinstate him and then it just comes down to cash.
    Straying outside the thread’s terms of reference, when asked by a rich young man how he could go to heaven Jesus replied that he had to sell what he had and give the proceeds to the poor, that it was easier for a camel to pass through the eye of a needle than for the rich to enter heaven i.e off to hell.

  68. Mother Lode

    1amp thinks that two people agreeing on something makes them collectivists and therefore lefties.

    He also trumpets that he is not a leftist.

    What does this tell us about him ever finding anyone who agrees with him?

  69. JC

    Too much is made about a reverse onus of proof in a civil context. RA will present their case first and adduce evidence that they were not motivated by their dislike of Folau’s religious views. If the evidence is such that, taken at its highest, it would uld be reasonable to find that they did not, a practical onus will fall on Folau to adduce evidence that they were.

    Rafki, stop being an idiot.

    You said this:

    Too much is made about a reverse onus of proof in a civil context. RA will present their case first and adduce evidence that they were not motivated by their dislike of Folau’s religious views. If the evidence is such that, taken at its highest, it would uld be reasonable to find that they did not, a practical onus will fall on Folau to adduce evidence that they were.

    What other reason would there be that he was fired other than they didn’t like his religious views. This is not even contestable.

    And stop it with the legalistic jargon and try to speak plainer English. You don’t impress me.

  70. JC

    I’m not projecting, Peter as I’m not mentally ill. You are.

  71. JC

    Rafki

    Don’t get me wrong, it’s good to see you back here after a long absence, but I believe, even you would agree with me that, you’re very annoying even at the best of times.

  72. In a REAL court, when you sue someone for legitimate reasons, like defamation or breach of contract, you have to prove damages.

    I think you’re serious. However, the first thing that a court determines is whether defamation or breach of contract had occurred. Just because you say it has, doesn’t make it so. If found in your favour, the court then determines compensation by assessing the extent of damage based on your claims, the defendant’s claims and precedent. That’s the simple explanation for your level of intellect.

  73. Caveman

    “I’ve donated and have skin in the game, …….let the trials begin. “( Chlamydia 29BC )

  74. Rusty of Qld

    Can Folau, in the prosecution of his case, demand from RA all the correspondence with Qantas/Joyce leading up to his dismissal?

  75. Chris M

    graham @ 12.10 great info thank you.

  76. Iva Right

    I hope Izzy rubs the Vicar of Dibley’s face in it well and truly. I am disgusted he could be pilloried for expressing his beliefs and think RA are an absolute disgrace!

  77. John Brumble

    Woah, woah, woah wtf?

    It was RA that made the initial claim that what IF did was wrong; that it was a breach of his contract. It is up to RA to prove that IF did indeed breach his contract. It is not in doubt that RA has actually terminated the contract here.

    Reverse onus of proof? What a load of horse apples.

  78. dover_beach

    Re Josiah Folau, you have to laugh at how the Australian is trying to characterize his parting ways with the school. Being ‘let go’ is different from being fired. Referring to your employer as the ‘synagogue of Satan’ also raises the question: Why are you employed by it?

  79. DaveR

    Iampeter you have got yourself into deeper scraps today than when we exchanged posts earlier on,……….. but I am a right-winger and a capitalist, but I do not support the right of an employer to terminate someone for any reason at any time. Never have, never will.

  80. Terry

    Up The Workers!
    #3120471, posted on August 1, 2019 at 11:29 am

    “and just have displays of competitive head”

    So, RA should simply “dispense entirely with troublesome Rugby” and move straight (possibly a “troublesome” word) onto hosting the Gay Mardi Gras with Qantas as exclusive sponsor.

    Could work, right up until their managerial competence takes over.

  81. I_am_not_a_robot

    Graham12:10 pm:

    It seems sufficient to breach the section if one of a number of reasons for the dismissal was the religion of the employee …

    Maybe, but between March 2018 and April 2019 Folau posted 43 times on a religious theme without repercussions, it was the post(s) in conflict with RA’s code of conduct, and probably NSW vilification law, that got him suspended.

  82. JC

    I do not support the right of an employer to terminate someone for any reason at any time. Never have, never will.

    Well that’s just virtue signaling silliness, DaveR. No one has a right to your labor and commensurately no one has a right to a wage.

  83. Atoms for Peace

    I just cannot bring myself to watch any corporate sport anymore. I would rather piss into a live toaster with no earth leakage as a safety circuit

  84. dover_beach

    Well that’s just virtue signaling silliness, DaveR. No one has a right to your labor and commensurately no one has a right to a wage.

    DaveR hasn’t said that we have a right to a wage, he said the where an existing contract exists, the employer cannot unilaterally rescind the contract for ANY reason.

  85. JC

    I just cannot bring myself to watch any corporate sport anymore. I would rather piss into a live toaster with no earth leakage as a safety circuit

    Yea, I don’t know how people go to AFL matches anymore. The administration hates the supporters and treats them like crap. They have notices on big screens asking people to snitch on their seat neighbors by texting them for any infractions.

  86. Chris M

    I would rather piss into a live toaster with no earth leakage as a safety circuit

    Make sure that goes on youtube ok

  87. Mark M

    If only Folau worshiped Gaia …

    “While we appreciate David has personal views on a range of matters, we’ve made it clear that we expect his priority to be ensuring he can fulfil his role as a high-performance athlete,” an ARU statement said.

    https://www.theguardian.com/sport/2014/dec/01/david-pocock-warned-australian-rugby-union-arrest-coal–mine-protest

    Former Wallabies captain David Pocock avoids conviction over Maules Creek coal mine protest

    https://www.abc.net.au/news/2015-02-04/david-pocock-avoids-conviction-over-maules-creek-mine-protest/6069082

  88. Phill

    Nemo judex in causa sua. Audi alteram partem.

    (Assuming anyone previously known as Spartacus would be down with comments in latin)

  89. Shaun

    The fairwork judges seem to side with employees. Just ask Nestle who had to reinstate employee who committed major safety breaches numerous times yet judge still ruled in favour of employee, or ask Australia Post who had to payout employee doing the wrong thing (XXX) on the internet and was terminated, as judge again sided with employee because of said HR department. We could also ask a security firm how they feel having to payout the employee for unfair dismissal event though employee was found guilty of violently assaulting and abusing management.

  90. AndrewWA

    What an absolute crock of an article.
    What other avenue does Israel Folau have if he thinks that he’s been wrongfully dismissed?

  91. Rafiki redux

    JC I talk in legalise when talking about legal concepts. My posts of this kind would be much longer were I to try to use ‘plain’ English. And then I doubt that many would get the point. Which here is that while the law (as Graham explained) requires RA to prove a negative, in practical terms this will not matter very much. If correct, this destroys Albrechtsen’s argument, which is what this post is about. Your contributions are beside the point. I suspect you and others find me annoying because I often question the line of the Cat threadsters. I am influenced here by the school (MHS) I attended.

  92. JC

    (MHS)

    As in Melbourne High School?

    Rafki, that’s better. See, you talk like you were a legal textbook on two legs.

    I can’t see why you believe RA is forced to prove a negative. The core of the case is I believe whether a labor contract can take away an individual’s right to free speech. I don’t believe that is possible.

  93. Rafiki redux

    JC In the end, this is what I hope will be the fundamental issue. But this post was about the supposed injustice of imposing a reverse onus of proof on a party. You just don’t get this. And yes, ’tis true I spent a good deal of time talking like a legal text. It was a useful skill given my career as a legal academic and professional. And for the most part I thoroughly enjoyed the Ilife. I hope you’re not going to tell me you also attended MHS. That would discombobulate me.

  94. JC

    Yea I went to MHS. You’d be discombobulated? Finding out you went there has absolutely crushed me.

    You’re over thinking the case as it’s really quite simple and there’s no “proving a negative” nonsense.

    Folau made a series of comments about all sorts of people – gays included – that if they continued to do these things and didn’t repent they would be sent to hell.

    RA fired him. It’s incontestable this was the reason he was fired.

    Does a labor contract remove the right for a person to speak openly about what he believes are his religious beliefs away from his workplace? In other words, does a labor contract trounce free speech? I think not. You obviously do.

    You’ve always been prone to overthinking.

  95. Win

    I don’t have to imagine being an employer in this situation we were. We joined fake two sided industry groups who could negotiate the Keating and Beattie industrial relations laws ,followed it to the letter and still paid out. Employers never win .At least with China taking the manufacturing industry these quasi judicial government bodies characterised by one victim as “the hairy legged ones “now have to rely on public service stress leave to get their jug of blood. This is aMedusa head with many strands.

  96. Iampeter

    You deliberately strip posters here of context in an effort to delegitimise the whole blog. If you were really trying to hold people to account here you would recognise that contributors have a range of ideas and can take as much away as they contribute. You’d also provide proper argument not strawmen.

    That’s a great description of what others do to my posts, including in this very thread, including in this very paragraph from you. The ignorance of the subject matter from posters here is only matched by their total lack of self awareness and projection.

    Yes, Fwa, HRC and in some cases ohs laws are not structured with best intentions. Worse are appointments to judiciary who deliberately try to undermine rule of law by precedent. Little of this matters in the Folau case, due process wasn’t followed to sack him and the law as it stands says he has rights.

    So you concede that these laws are not “structured with the best intentions,” which is a weird way of phrasing it as it’s not clear if you support or oppose them, but then you proceed to state that it doesn’t matter in the Folau case for the very reasons that these laws, that I assume you don’t agree with weren’t followed?

    Not only are you incapable of even taking a clear position, you couldn’t even make one argument without completely contradicting yourself.

  97. Iampeter

    I’m not projecting, Peter as I’m not mentally ill. You are.

    Oh yes you are and yes you are.
    Who are you kidding?

    but I am a right-winger and a capitalist, but I do not support the right of an employer to terminate someone for any reason at any time. Never have, never will.

    Then you’re not a right-winger or a capitalist.

  98. Crossie

    Fair to assume rugby Australia looked at the contract before sacking him.

    The Vicar of Dibley can’t be expected to concern herself with such mundane things when the vibe of the thing is on the line.

  99. Crossie

    Bad Samaritan
    #3120618, posted on August 1, 2019 at 2:54 pm
    The QWERTY guy at QANTAS let ’em know he wanted Izzy’s head to roll….and so it came pass…

    I think RA would have got away with it if Joyce and the head of NAB kept their traps shut but that would be expecting too much from our betters.

  100. Crossie

    dover_beach
    #3120701, posted on August 1, 2019 at 5:26 pm
    Re Josiah Folau, you have to laugh at how the Australian is trying to characterize his parting ways with the school. Being ‘let go’ is different from being fired. Referring to your employer as the ‘synagogue of Satan’ also raises the question: Why are you employed by it?

    Even bigger question is “Why would you want to work for it if you thought of it that way?”

    His parents must have thought the school had merit as he had been educated there.

  101. John of Mel

    They have notices on big screens asking people to snitch on their seat neighbors by texting them for any infractions.

    In a normal society everyone at a stadium would text at the same time to overwhelm the system. But we are not normal anymore. Most of the people are happy to be told how to live by our “betters”. Sad.

  102. Frank Walker from National Tiles

    but I am a right-winger and a capitalist, but I do not support the right of an employer to terminate someone for any reason at any time. Never have, never will.

    Then you’re not a right-winger or a capitalist.

    No, you’re both wrong. It depends on what is in the contract.

  103. Jannie

    Its not reversing the onus of proof, they are not required to prove that they did not sack him for quoting the bible. RA have to demonstrate that their action to dismiss is justified in accordance with terms of their contract and properly documented. In any administrative appeal system you are required to show that you acted correctly according to law/procedures.

  104. Iampeter

    No, you’re both wrong. It depends on what is in the contract.

    What are we both wrong about that depends on what is in the contract?

  105. Craig Sargent

    Reversed? Yes!

    This is what is known as making the left play by their own rules…..

  106. Buccaneer

    Iampeter

    #3121074, posted on August 2, 2019 at 7:33 am

    Proving yourself a sock puppet again. Your constant refrain of “I’m not you are” doesn’t even cut it in today’s schoolyard. Not to mention the other bog standard lefty tactic of removing the key parts of a person’s post and using the non key bits to try to smear them.

    No posters here would be wise to spell out their positions to you, you’re not prepared to post honestly. Time and again, posters have agreed with your position only for you to deliberately attempt to belittle and shame them. Sometimes even before you’ve spelled out the shell of an argument.

    I obliquely agreed with you about the reverse onus of proof problem because it’s an issue in HRC and OHS applications but there are nuances with unfair dismissal as an employee should not need to prove their dismissal was unfair (there must be a basis for their claim not proof), the employer should demonstrate it was fair as in many cases they will have information which the employee has no access. I further have problems with what is currently fair and not fair and think this should be as limited as possible.

    Again, this doesn’t matter, because my point had nothing to do with the law only that Folau has a case rightly or wrongly, which you are attempting to deny him. The broader point is that it’s you who are confused. You think that coming on this blog bagging people from strawman positions is somehow furthering better legislation?

    Until you can take the hint that it’s human nature to treat people who act in bad faith with a dose of their own medicine, you’ll continue to get the same responses. You’re the only one here who can prove you’re not just a sad lefty who thinks that disrupting discussion here is furthering the cause.

  107. flyingduk

    The onus of proof is broken daily in the case of speed camera law, where for example, PROVING you were not driving the vehicle is NOT allowed as a defence. You must instead name someone else who was.

  108. Frank Walker from National Tiles

    Iampeter
    #3121159, posted on August 2, 2019 at 9:13 am

    No, you’re both wrong. It depends on what is in the contract.

    What are we both wrong about that depends on what is in the contract?

    If I employ you and agree not to have an at-will contract, I cannot assert or claim at-will rights to fire you.

    This is pretty basic stuff if you’re not concern trolling.

  109. Iampeter

    Proving yourself a sock puppet again. Your constant refrain of “I’m not you are” doesn’t even cut it in today’s schoolyard. Not to mention the other bog standard lefty tactic of removing the key parts of a person’s post and using the non key bits to try to smear them.

    Again you’re just describing yourself, not me.

    No posters here would be wise to spell out their positions to you, you’re not prepared to post honestly.

    That’s because posters here don’t have any positions and can’t make any clear statements without contradicting themselves. That’s why you spend you’re entire time lecturing me and accusing me of doing what you’re doing.

    I obliquely agreed with you about the reverse onus of proof problem because it’s an issue in HRC and OHS applications but there are nuances with unfair dismissal as an employee should not need to prove their dismissal was unfair (there must be a basis for their claim not proof), the employer should demonstrate it was fair as in many cases they will have information which the employee has no access. I further have problems with what is currently fair and not fair and think this should be as limited as possible.

    This would be an example of what I mean. What are you even trying to say?

    The question is: do you think businesses should have to ask permission from government before firing someone? You’re answer to this seems to be, “yes, but no…”

    Again, this doesn’t matter, because my point had nothing to do with the law only that Folau has a case rightly or wrongly, which you are attempting to deny him.

    This makes no sense because your previous position makes no sense.

    Do you support government regulating private enterprise, for example who they can or can’t fire? Yes or no and why.
    Then based on that answer, what case do you think Folau has?

    You think that coming on this blog bagging people from strawman positions is somehow furthering better legislation?

    That’s what I’m telling YOU, basically.
    Or to be more clear: coming to a political blog without having any understanding of politics and posting confused, self-contradictory nonsense, then getting triggered when this gets pointed out to you, is certainly not going to further better legislation.

  110. Iampeter

    If I employ you and agree not to have an at-will contract, I cannot assert or claim at-will rights to fire you.

    This is pretty basic stuff if you’re not concern trolling.

    At no point have I “concern trolled.”
    That is another term you don’t understand.

    But you didn’t answer the question. You don’t seem to have understood what was being discussed yet concluded we were both wrong.

    I expect no less from an exceptional individual such as yourself.

  111. Frank Walker from National Tiles

    I answered the question dummy.

    You’re upset because it annihilated your left-wing concern trolling.

  112. old bloke

    Two parties (RA & IF) willingly enter into a contract that promises that RA will pay IF x dollars for providing a service. RA terminates the contract and IF claims that it acted unlawfully as he was providing the service as per the contract.

    It seems entirely appropriate that the onus should be on RA to prove that they cancelled the contract due to IF breaching its terms. I don’t see how this this “reversed onus” could be viewed as “but what a disgrace. What a disgrace.”

    I_am_not_a_robot
    #3120650, posted on August 1, 2019 at 4:27 pm
    Straying outside the thread’s terms of reference, when asked by a rich young man how he could go to heaven Jesus replied that he had to sell what he had and give the proceeds to the poor,

    No he didn’t, Jesus replied that the rich young man had to abide by the Law (Torah). This business about selling his stuff was his answer to the young man’s second question.

  113. Iampeter

    No, you haven’t answered any questions and are using terms you don’t understand incorrectly.

    You are a politically illiterate leftist, with obvious mental issues, like many posters here.

  114. Frank Walker from National Tiles

    Question:

    What are we both wrong about that depends on what is in the contract?

    Answer:

    If I employ you and agree not to have an at-will contract, I cannot assert or claim at-will rights to fire you.

    ———————————————————————————————————————

    You’re here to troll Peter and nothing more. Yes you do hit the low hanging fruit of nationalist, protectionist stupidity. On everything else, you’re just a caricuture of what righties actually believe.

    You’re not worth engaging with. You prefer rhetorical debate to an actual discussion filled with facts and logic.

  115. Iampeter

    Answer:

    If I employ you and agree not to have an at-will contract, I cannot assert or claim at-will rights to fire you.

    That’s not the answer, it doesn’t make sense given what we were discussing. You haven’t understood what was being discussed.
    What you meant to say was you are introducing a new point, independent of what we were discussing, not that we were both wrong about something.

    You’re here to troll Peter and nothing more. Yes you do hit the low hanging fruit of nationalist, protectionist stupidity.

    No, moron. It is you that is here to troll because an unhinged imbecile like you would be banned anywhere else.

    Like most nutters here you simply have no clue what you are saying and make posts that are non-starters on the face of it. You have no business on a political blog, but will just keep trolling away.

    You’re not worth engaging with. You prefer rhetorical debate to an actual discussion filled with facts and logic.

    This is a description of you, not me. Evasion and projection is an art form for you cretins.

  116. Frank Walker from National Tiles

    “You’re answer is not an answer, you’re a moron tee hee”

    I’ve been very direct with you and you claim I am being evasive.

    All for the show of portraying righties as nasty fuckers who wasn’t everyone sacked for no fucking reason at all, even to the point of making up a moral right to unilaterally change contractual rights.

    Pathetic.

    The shoes Stalin forgot to edit out of photos were less obvious.

    Yes yes Peter, Every actual conservative and libertarian in Australia is an “unhinged imbecile” except for you and 25 other losers who get nothing done.

    I hope you can live with your impotence if you’re actually a poor soul who is honest.

  117. Iampeter

    I’ve been very direct with you and you claim I am being evasive.

    You’re not being direct and I’m not accusing you of being evasive.
    I’ve clearly said you don’t understand what was said and don’t know what you’re saying.
    Or put more bluntly: you have no clue what you’re talking about.

    All for the show of portraying righties as nasty fuckers who wasn’t everyone sacked for no fucking reason at all, even to the point of making up a moral right to unilaterally change contractual rights.

    You are not “righties.” The reason for this has clearly been explained in at least one post by me in this thread alone and in countless posts in other threads. Although basics like this shouldn’t even need to be explained, so you’re politically illiterate not-righties too.

    Yes yes Peter, Every actual conservative and libertarian in Australia is an “unhinged imbecile” except for you and 25 other losers who get nothing done.

    Don’t know about “in Australia” but certainly at the Cat.

  118. Leigh Lowe

    Mack Horton has a contract with Swimming Australia.
    Presumably Swimming Australia has a Code of Conduct similar to that of Rugby Australia.
    Mack Horton has publicly criticised a Chinese swimmer, Sun Yang.
    The major sponsor of Swimming Australia is Gina Rinehart’s Hancock Prospecting.
    Hancock Prospecting has a primarily Chinese customer base.
    Imagine this …
    Gina’s Chinese customers complain of their “distress and anguish” at Horton’s thoughtless and racist actions.
    Gina complains to Swimming Australia that Horton has “damaged her brand” and publicly states that she “looks foward to a resolution from Swimming Australia”.
    Horton has his contract terminated by Swimming Australia.
    Naturally, Liz Ellis and Poiret Pete are ecstatic.

  119. A Lurker

    Guys, scroll past the troll.

  120. dover_beach

    It’s very interesting that TAFKAS hasn’t responded to Graham’s or Rafiki’s points.

  121. Iampeter

    Guys, scroll past the troll.

    Then all you’d be reading is my posts…

  122. mh

    Can you two boys get a room.

  123. Frank Walker from National Tiles

    You’re not being direct and I’m not accusing you of being evasive.

    Unintentional comedy gold.

    Have another rake.

  124. Kneel

    Well, first this means you are also on the left wing side of politics since you think that employers should get permission from government before firing people.

    Hardly – read harder and stop being such a twat.
    There are rules, whether you like them or not. They apply equally to all. Saying “you can’t sack people because of their religion” is not the same as saying “you have to ask us before you sack someone”.

    But that aside, this is not what the Folau case is about.
    The Folau case is specifically about religious discrimination, which like I said, wouldn’t have even come up in the initial complaint hearing.

    Really? Dismissed by the respondent (RA) as “not the reason”, OK, fine. Folau apparently has a different view on what the case is about and he thinks it is about religious discrimination. The man has a point, IMO.

    There’s no case of discrimination here.
    If muslim players have made comments re: the Koran, Mohammed etc on social media accounts, and didn’t get the boot, or even get asked to stop, then there is discrimination – it’s called selective enforcement. I would be more than a little surprised if Folau can’t find something that fits the bill.

    Further more, given players that committed actual physical violence against others, went on drunken rampages etc etc, don’t appear to have gotten booted for good for their first offense (IIRC, some even had more than one “time-out”), I personally think the punishment is disproportionate to the “crime” in Folau’s case.

  125. Rococo Liberal

    There is no reversal of the onus of proof in the Folau case.
    Hey, mate, have you ever heard of this concept called a ”contract”. If you terminate a contract with anyone, it is up to you in court to prove that the termination was lawful.

  126. Bec

    Iampeter, TAFKAS: please can you listen to the lawyers who are posting here as neither of you have any idea what you’re talking about. The concept of innocent until proven guilty is a criminal law concept. In a criminal matter the prosecution bears an onus of proof because the accused person is assumed innocent. The Folau matter is not a criminal matter; it is a contractual dispute as you are so keen to point out. There is no party to a contractual dispute who is assumed to be correct so the concept of onus of proof is redundant. The concept simply doesn’t exist in contractual disputes at all – regardless whether it is a dispute about an employment contract or any other contract. I don’t know what’s in the statement of claim but Izzy will presumably be arguing something like the following (I) the clause of his contract requiring him not to bring the sport into disrepute is unlawful insofar as it infringes on his right to freedom of religion. The freedom to contract is not absolute – it is well established that courts won’t uphold certain provisions even if they are expressed very clearly in the contract (eg courts won’t uphold unlawful restraints of trade, contracts for prostitution). (II) even if the provision is lawful, Izzy did not bring the sport into disrepute by simply quoting the Bible. RA will have to respond to both elements of the claim, and any others that Folau’s lawyers make out. This is how contract disputes work and why it is wise to avoid them if possible which is something that RA presumably took into account when it purported to exercise termination rights for a breach of contract. Both TAFKAS and Iampeter have in their expert legal judgment but without having ever read Izzy’s contract and apparently knowing nothing of contract law, already determined that this is a cut and dried case of breach of contract and thus it should be a lay down misere for RA to establish this, so I’m not sure what they are worried about. Incidentally I understand statutory unfair dismissal claims (available as I understand it to relatively low income earning employees) do include elements of reverse onus as set out in summary terms by Des above, but I also understand that Izzy’s dispute is not an unfair dismissal claim (for the reasons also given by Des above), but a contract claim.

  127. dover_beach

    If you terminate a contract with anyone, it is up to you in court to prove that the termination was lawful.

    TAFKAS rolls snake eyes.

  128. politichix

    Rococo Liberal
    #3121402, posted on August 2, 2019 at 1:28 pm
    There is no reversal of the onus of proof in the Folau case.
    Hey, mate, have you ever heard of this concept called a ”contract”. If you terminate a contract with anyone, it is up to you in court to prove that the termination was lawful.

    +1
    Thank you! The conversation in here was doing my head in…

  129. Buccaneer

    Surprise, surprise, the sock puppet dishes up more of the it’s not me its you drivel. Reverts to another standard lefty arguing tactic of claiming not to understand the other person’s argument because they are stupid.

    No one cares 1amp. We can all see you for what you are. You’re pathetic, it’s not concern trolling, it’s far more sad than that.

    You’ve made it clear that Cat posters aren’t worthy of your “intellect” on so many occasions, but you’re still here. What a charity you are, what a service to humanity.

    Your tombstone will read, here lies 1ampmeter, gave his soul call cat posters morons and cretins.

    What a genius…

  130. Yo Dover Red Rover

    If you terminate a contract with anyone, it is up to you in court to prove that the termination was lawful.

    Fool. Plain fool.

    It’s very interesting that TAFKAS hasn’t responded to Graham’s or Rafiki’s points.

    TAFKAS has not replied because whatever comments were made were drowned in a pile of dross unrelated to the point of the post, including from your learned self.

    If TAFKAS terminates a contract (for valid or invalid reasons) or even breaches a contract, such event does not automatically pop up on a court list. Someone, presumably the party on the other side, decides to pursue the matter in a court. They state that the contract is improperly terminated and then state why they feel so and then present their evidence in support. TAFKAS then presents his defense in reply.

    Let’s use a tangible example. You and TAFKAS enter into a contract for me to sell you a car. Having entered this contract, TAFKAS decides not to honour TAFKAS’ end of the deal because TAFKAS considers you are mentally challenged, and providing you with a car would be a threat to safety. But you are very keen on the car and it was at a very good price and you feel slighted and you want TAFKAS to honour his end of the contract.

    This dispute would not magically appear in a court where TAFKAS would have to prove that the contract termination was for valid reasons, within the terms of the contract. No. Dover would need to make a statement of claim and support it with evidence and TAFKAS would then and only then need to reply.

    What you would propose would be that you would snap your fingers and TAFKAS would have to prove to a court that the contract breach was invalid without you doing any more than crying it’s unfair. Now as an aside, a sample of your Catallaxy writings should normally provide evidence in support of TAFKAS’ defence, but who knows how a judge would react. In a land with laws and property rights outside Dover_Beach_land, you would need to first prove your case (except where the onus of proof has been reversed).

    And dear @Bec

    If you read closely, there is not lawyer consensus. Or do you believe that the Law is settled and TAFKAS is a law denier? Is there a legal emergency or should we have legal action now?

    TAFKAS made no mention of a criminal standard. TAFKAS deliberately avoided discussing the issues of the Folau matter. TAFKAS quoted Albrectsen and the point about RA, having to present its defence as a starting proposition rather than in reply to a statement of claim with evidence.

    There is a word TAFKAS has learned from this august website, beclown. Perhaps you not beclown yourself. When you say ” Izzy did not bring the sport into disrepute by simply quoting the Bible”, that is a fine and fair opinion. However it is but an opinion absent any actually evidence and presumably you actually speaking to either party. RA will probably dispute this and they will probably say that the termination had nothing to do with him quoting the bible in the first place.

    Where this one falls will be up to the Federal Circuit court or beyond.

  131. Anon Mahnà

    Let’s use a tangible example.

    Tangible means something that is able to be held by actual hands so I’d love to see that tangible example.

    TAFKAS decides not to honour TAFKAS’ end of the deal because TAFKAS considers you are mentally challenged, and providing you with a car would be a threat to safety

    No. A better (though, sadly, not tangible) example would be if TAFKAS decided not to sell Dover a car as contracted but, instead, decided to launch a campaign of harassment against Dover in various illicit ways including defamation in the media by TAFKAS’s powerful friends and persuading Dover’s employer to sack him.

  132. This dispute would not magically appear in a court where TAFKAS would have to prove that the contract termination was for valid reasons, within the terms of the contract. No. Dover would need to make a statement of claim and support it with evidence and TAFKAS would then and only then need to reply.

    MAGISTRATE: “What evidence have you that TAFKAS terminated your contract?”
    DOVER: “I ain’t got no fvcking car your worship.”
    MAGISTRATE: “Mr TAFKAS, did you deliver the car to Dover?
    TAFKAS: “No your supreme lordship.”
    MAGISTRATE: “You did not honour the contract? Show cause why.”

    Stay off the cardboard Cabernet mate, you’re not thinking too straight about his issue.

  133. Bec

    Hi TAFKAS

    I’ll try to respond to your points in order:

    1) Your reference to reversing the onus of proof in a civil case is nonsensical, for the reasons I explained above (as did others including I think Des, Leigh, Rafiki – I assume that these people are lawyers because they state the law correctly, although of course they might be laypeople with a solid understanding of contract law). I have no idea what you mean by consensus: the legal concept of onus of proof is quite settled and has no application to a contractual dispute. People who understand this uncontroversial point (whom I have assumed to be lawyers) are endeavouring to explain it to you and I wish that you’d listen to them so that you stopped putting up blog posts in which you purport to make a legal point that is simply incorrect.

    2) I agree that you made no comment on the criminal standard and neither did I as it was irrelevant to my point, I think you might be confusing me with Dover who said something above referencing the “beyond reasonable doubt” criminal standard and the “balance of probabilities” standard.

    3) I understand that you were riffing from Albrechtsen’s article regarding the Folau matter to try to make a broader point about onus of proof in unfair dismissal cases, but you have confused different issues in writing “what TAFKAS would like to do is highlight some of the things in Albrechtsen’s piece, as someone who is generally unfamiliar with the Fair Work Act”. Izzy’s claim is not under the Fair Work Act; it’s a claim for breach of contract. I understand that there is a reverse onus that applies in unfair dismissal cases and this is probably outrageously unfair on employers. This has absolutely nothing to do with the Folau case nor with Albrechtsen’s article referencing Folau’s case.

    3) Contrary to your post above, Albrechtsen’s article didn’t at any point state that RA had to present its case as a starting proposition or suggest that RA had to do something other than submit a Defence in response to Izzy’s statement of claim. You have incorrectly inferred this from Janet’s reference to RA bearing an onus of proving something. If you are worried or outraged that RA has to do either of these things on the basis of your understanding of Janet’s article, you can calm down because your understanding is incorrect and RA will (as any Defendent in a contract dispute) simply have to establish that Izzy’s interpretation of the contract is wrong.

    4) I’ll take your gracious reference to beclowning myself in the no doubt good natured spirit in which it was intended, but I must point out that in my post above I simply anticipated two of Izzy’s likely legal arguments rather than giving any view of my own. Of course whether or not Izzy’s quotation of the Bible brings the game of rugby into disrepute is precisely the heart of (one of) Izzy’s legal arguments and hasn’t been decided as yet one way or another by the court (which is why TAFKAS’s earlier posts on this issue in which you characterized this as an open and shut breach of contract case were misguided).

  134. dover_beach

    What a strange and ridiculous reply by TAFKAS. Folau’s complaint didn’t just ‘magically’ appear before the court, he made an application to the court himself. He’ll also have to present in the application an argument that indicates the nature of his claim. None of which has anything to do with any burden of proof as yet. Once he’s established the material facts of the case, such as their being a contract between himself and the RA, that there was no clause that limited his public statements, that any such clause would itself be a contravention of the law, that the contract was terminated, that statements made by the severally principals of the RA suggested that the termination was indeed motivated by his religious statements on Instagram, and so on, then the burden will fall on the RA to show on the balance of probabilities that its termination of the contract was not motivated by his religious statements at all.

  135. A Lurker

    I recollect reading somewhere that the social media provision in the contract (which appears to be the core of this issue), was not actually in the original contract, but something that RA added in later after the contract was signed by IF and was an addition that IF did not agree to.

  136. cohenite

    Reverse onus is in Ss 418-421 NSW Crimes Act 1900; which means police have to prove anyone who acts in self-defence and harms or kills an attacker did not act reasonably in doing so.

    I think that’s great.

  137. Graham

    There is a bit of confusion in this thread.

    Folau has filed a claim in the Federal Circuit Court. I haven’t seen it, and I doubt anyone else here has either. Presumably it alleges that Folau was employed by RA and that RA terminated his contract of employment for reasons which included reasons which are prohibited under section 772 of the Fair Work Act 2009.
    If Folau has made such a claim of termination for an unlawful reason then RA has the onus of proof of showing that it did not terminate the contract for such a reason.

    At any trial Folau goes first and presents all his evidence, and then RA responds presenting all of its evidence, and sometimes the claimant can present further evidence in rebuttal.

    Any claimant (plaintiff) has to prove his or her civil case on the balance of probabilities. Folau will simply be helped in the proof of his case if RA cannot prove -on the balance of probabilities – to the contrary that it did not terminate his employment for a prohibited reason. RA has to prove a negative. If RA cannot do that, then the Court presumes that Folau’s employment was terminated for an unlawful reason.

    RA would seek to prove the negative by giving evidence of all the reasons why it did sack Folau and that none of those reasons were his “religion”. Folau’s counsel would seek to cross-examine RA’s witnesses to show that their evidence on the point should not be accepted by the court.

    Most lawyers will tell you – and this is the point I think Rafiki was making – that even though the legislation contains the presumption in favour of the employee, the statutory presumption is often no big deal in practical terms because it is only the starting point and both sides will present their evidence, and the court will weigh up all the evidence. What it means is that RA will have to do the hard yards of calling a number of witnesses who can say why they made the decision they did make to terminate Folau’s contract, and in order to win they must demonstrate that his “religion” was not a factor at all in his dismissal.

    It certainly seems that the content of Folau’s social media postings were a reason for the termination of his employment, but whether that amounts to terminating his employment because of his “religion” – which is the test under section 772 – is the harder thing to establish. There are possible arguments on either side on this point.

    The argument for Folau is that if publicly expresses what he considers to be the tenets of his religion, and RA tells him not to do so because those statements infringe their policies, and then RA sacks him because he keeps on expressing his views, then a reason for his sacking must be because Folau is an adherent of a “religion” and he has been terminated because of his “religion”.

    Presumably RA will say that they did not sack him because he is a Christian per se but because his posts did not meet their “woke” policies and the public image that RA wanted to present to the world and it was irrelevant to the reason for the sacking was that the source of Folau’s views were his religious beliefs.

    In effect that means that if you are employed by RA you are expected not to express publicly your religious views if those views are inconsistent with RA’s standards. In effect that amounts to curbing one’s right to express one’s religious views if you want to be employed by RA. Why should any employer be entitled to control their employees’ lives to that extent? To my mind that seems unreasonable.

    However that is probably not the legal issue the court will be deciding.

  138. Lee

    That’s because posters here don’t have any positions and can’t make any clear statements without contradicting themselves.

    The very definition of irony, coming from you.

  139. Siltstone

    Graham
    #3121525, posted on August 2, 2019 at 4:37 pm
    There is a bit of confusion in this thread.

    But you have cleared a lot of it up, thanks Graham

  140. cohenite

    Graham

    #3121525, posted on August 2, 2019 at 4:37 pm

    This is a fascinating case on many levels. RA will try, I expect, to keep it as narrow as possible to a contractual breach by Izzy. But I don’t see how they can avoid S.772. Regardless, it is a test of wokeness because the only category who gives a rat’s about his comment are the homosexuals. My atheist, drunken philanderers don’t give a shit.

    The reversal of onus thread heading is a nonsense although I understand how it gets people confused.

  141. Frank Walker from National Tiles

    Graham – what about contractual vagueness? I’m thinking the caselaw surrounding Codelfa might be instructive.

    RA’s social media policy was very vague. What would a judge decide if the term relying on this is inoperable?

  142. Rafiki redux

    Thanks Graham. You identified the nub of my point. The reference to Jones v Dunkel was for the lawyers. I got it from a High Court case. Chugg is a party name I think.My analysis is a bit simplistic. While I suppose Folau will go first, he will need to adduce evidence that was dismissed on religious grounds in order to make this an issue so that RA will need to prove that this was the reason.

  143. Rafiki redux

    That he was dismissed…

  144. Rafiki redux

    RA will have to prove that religious grounds were not the reason. Sorry for these errors.

  145. Frank Walker from National Tiles

    Rafiki

    What does the Fair Work Act say about contractual vagueness? Do you think the RA’s social media policy is vague at all?

  146. 2dogs

    Slight misunderstanding of Folau’s case here.

    Folau is asserting that proselytising is an essential part of his religion. After he asserts that, it will be hard for RA to deny that is the case. Consequently, RA really can’t then argue that the dismissal wasn’t on religious grounds.

    RA, instead, has to argue that not making certain kinds of public comments in a necessary requirement of the job of being a football player – relying on section 772 (2) (a) . If they can establish that argument, their discrimination against proselytisers is permissible.

  147. cohenite

    What does the Fair Work Act say about contractual vagueness?

    I think the termination document is the key. I can’t believe RA would have made specific reference to Izzy’s tweet because that would invoke S.772. If his contract has a motherhood clause going to not bringing the RA in disrepute then the inherent vagueness of that will be overcome by reference to the religious content of the tweet and therein S.772.

    However there may be an interesting precedent for the RA. There have been 7 Day Adventists who can’t play on Saturday refused contracts in the past to play in rugby league.

  148. Iampeter

    Hardly – read harder and stop being such a twat.

    If you think employers need to ask permission from the government before sacking people then you are on the left wing side of politics. There’s nothing “hardly” about it.
    It’s kind of like if you’re a statist who believes in regulating trade, immigration, marriage, basically everything conservative, you are on the left wing side of politics. This is an example of that entry-level stuff that shouldn’t need to be explained.

    Folau apparently has a different view on what the case is about and he thinks it is about religious discrimination. The man has a point, IMO.

    I know that’s your opinion, but what I was explaining in my post was that it was wrong.

    If muslim players have made comments re: the Koran, Mohammed etc on social media accounts, and didn’t get the boot, or even get asked to stop, then there is discrimination – it’s called selective enforcement. I would be more than a little surprised if Folau can’t find something that fits the bill.

    This was also addressed in my post. Not sure why you’ve just repeated this again. Nothing new was added.

  149. Iampeter

    Bec, I’m not sure who these lawyers are that you think I should be listening to here, but you seem to mean randoms quoting from the Fair Work Act, which does not make one a lawyer.
    In any case, neither these lawyers nor you seem to understand what’s being discussed.
    Firstly, Folau has lodged an unfair dismissal claim through Fair Work. This is not a contractual dispute and I think you’ve confused this with the reasons RA gave for the firing.
    Secondly, the rest of your post is not in dispute by me, nor I think by Spartacus either. Like many others here, you’re just having your own conversation that isn’t related to the case but is a fantasy of what you think is going on.

    From my end I’m only making two arguments:
    First argument: The specifics of the Folau case are that of a bogus discrimination complaint that wouldn’t have even reached the mediation stage if an average Joe had brought it.
    Second argument: Unfair dismissal laws and Fair Work Acts are leftist nonsense that those who are actually right wing should be opposing as a matter of principle anyway.

    That’s it. Nothing in your wall of text remotely addressed any of this, just like the other posters here.
    Maybe get all the basics straight before telling other people they don’t know what they’re talking about.

  150. Iampeter

    Hardly – read harder and stop being such a twat.

    Read what harder? If you agree with unfair dismissal laws you’re a leftist. It’s basic.

    Folau apparently has a different view on what the case is about and he thinks it is about religious discrimination. The man has a point, IMO.

    Yea I know that’s your opinion. I wasn’t disputing that, I was pointing why it is a wrong opinion.

    The rest of your post was a repeat of what you already said in the last post without adding anything new and it was already addressed in the post you responded to, so not sure why you included it.

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