Israel Folau and Rugby Australia will take their lawyers along to a conciliation conference on Friday in a clear indication the case is headed for a high-profile airing in the Federal Court.
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As Folau's Australian Christian Lobby-backed fighting fund looked set to surge past the $2 million mark on Wednesday night, both Folau and RA confirmed they had agreed to have their legal representatives present at what is usually a low-key first-step procedure in the Fair Work Commission.
The move is unusual because, under the Fair Work Act, parties must seek permission to have lawyers or paid agents with them during conciliation and legal sources indicated the commission rarely granted those requests.
Folau will take representatives from Macpherson Kelley to the conference, which starts at 9.30am on Friday. RA has retained Herbert Smith Freehills, the same firm that acted for it during the code of conduct tribunal that culminated in Folau's sacking last month.
The development suggests neither party believes the matter will be resolved through conciliation. If the process fails, a hearing before the commission will follow. It would be expected to drag on for several months and potentially overshadow Australia's Rugby World Cup campaign in September and October.
Even then, the commission can only direct reinstatement or a payout to the maximum value of six months' pay, roughly $500,000 in Folau's case. Given the former Wallaby stated in his claim he would be seeking $5 million plus damages for lost opportunity, it is likely his legal team will want a certificate issued to give them leave to lodge a statement of claim with the Federal Court.
Employment law experts expect the Folau case against Rugby Australia to set a new precedent in how far an employer can go to curb the speech of employees outside the workplace.
Anthony Forsyth from the RMIT graduate school of business and law said employment tribunals had often upheld codes of conduct and he expected to see a continuation of that trend in the Folau case.
He said outside the discrimination law context, courts and tribunals had upheld employer codes that impacted on the ability of employees to say things publicly on social media.
"I think we would see a continuation of that trend in this case and that it would override the discrimination law protection," Forsyth said.
Employment lawyer Josh Bornstein from Maurice Blackburn said most employment litigation was settled before trial.
"That said, most employers don't settle at the Fair Work Commission conciliations in my experience," he said.
If the case runs, even with appeals, Mr Bornstein said it should not cost "anything like $3 million". The ACL-run war chest, which was set up on Tuesday after crowdfunding platform GoFundMe suspended Folau's first fundraising attempt, had raised close to $2 million by Wednesday evening.
Folau said he was "humbled" by the support from donors and that GoFundMe's decision to shut down his original fundraising efforts had highlighted the importance of his case.
"To those who have criticised me, I bear no ill will towards you. You have every right to express your own beliefs and opinions. To the thousands of you who donated to my GoFundMe campaign, I am forever grateful," he posted on Instagram on Wednesday morning.
"GoFundMe's decision to shut down my campaign proves the importance of my case; whether you share my faith or believe in my right to express it, attempts to sanction what we believe is a threat to all Australians."
One employment lawyer who did not wish to be named said he was concerned the Folau case could set a precedent that would allow secular employers to limit religious expression as a lawful requirement of the job.
Mr Bornstein said it was a defence in certain cases of alleged unlawful discrimination to argue that a term or condition imposed on an employee forms part of the inherent requirements of the position.
"I think it would be a highly adventurous argument for Rugby Australia to run, if it chose to do so," he said.
Liberal Senator and former Employment Minister Eric Abetz said the Folau case was a very important precedent setting case as to where the law currently stood.
"There needs to be a clarification in the law to ensure that people like Izzy Folau are protected and don't have to incur the cost of literally $1 million or more potentially for a court case," he said.
"The average truck driver simply would not have the public profile to be able to raise that sort of money like Izzy has been able to do and that is why this case is not just about Izzy Folau but every single one of us and our rights."
Senator Abetz was also critical of the ANZ bank for its "ham-fisted attempt at trying to be moral police by muscling in on Maria Folau", saying it was "about as distasteful an intervention as one could have imagined by a bank whose own record is not that clean".
- The Age/SMH
