Legal opinions split on whether Andrew Thorburn could argue discrimination over Essendon resignation

Employment lawyers are split on whether former Essendon chief executive Andrew Thorburn has a case for unlawful dismissal after he was forced to choose between the job and his role as chair of a controversial church, sparking a national debate on religious freedoms.

Despite the furore, the federal Labor government maintains it won’t be moved into acting on religious discrimination before the end of the year.

One lawyer, Kiri Jervis from law firm Clyde & Co, said Thorburn’s resignation was not a result of views he himself had expressed publicly. This is in contrast to Rugby Australia’s sacking of Israel Folau for expressing homophobic views on social media, which the athlete said were his religious beliefs.

“There’s a difference between holding those views and then expressing them,” Jervis said.

“The issue we have here is he holds the position in the church, and the church holds those views, so does that make the two incompatible in a workplace? That’s the question.

“It’s going to be really interesting the way it plays out over the next few years because I think this is the issue of our time at the moment. People are going to need to get a lot more vigorous in the hiring process.”

Michael Bradley, managing partner of Sydney law firm Marque Lawyers, said Essendon could argue the health and safety of LGBTQ+ players and members of the football club could have been at risk under Thorburn’s leadership.

“That certainly would be a live issue and probably one basis on which the club would defend itself,” he told Guardian Australia. “The other sort of threshold issue would be whether it was even an act of discrimination based on religious belief in the first place.”

Thorburn was appointed to the Essendon role on Monday but resigned a day later, after sermons by the City on a Hill church, which is part of the Anglican Diocese of Melbourne, were made public.

The sermons likened abortion to concentration camps and included claims that “practising homosexuality is a sin”, though the church has published an apology on its website for the language used in the former.

Political and religious leaders have weighed into the debate, with the latter defending Thorburn’s freedom of religion, protected under Victoria’s Equal Opportunity Act 2010.

The legal protection means that a person cannot be treated unfavourably because they hold, or do not hold, a lawful religious belief or view.

There are, however, some exceptions, in which discrimination may not be against the law in particular circumstances, including where it is necessary to protect the health and safety of a person.

Bradley said Essendon had been clear the church’s views on social issues and inclusion had not been the issue for the club and that Thorburn’s resignation was caused by a conflict of interest.

“He was planning to occupy two positions which are inherently inconsistent and made it impossible for him to perform both at the same time,” Bradley said.

“If they attacked him for being a Christian, sure, he’d have a case for discrimination but that wasn’t the issue as the club described it.”

Josh Bornstein, an employment lawyer at Maurice Blackburn, told ABC Radio Melbourne that Thorburn could have a legal case for religious discrimination but also acknowledged a potential conflict with “rights to be free from homophobic vilification”.

The attorney-general, Mark Dreyfus, has committed Labor to addressing religious discrimination legislation within this term of parliament, but explicitly ruled out doing it before the end of the year.

A spokesperson for Dreyfus said the government remained committed “to extending the federal anti-discrimination framework to ensure that Australians are not discriminated against because of their religious beliefs or activities in other areas of public law”.

But that won’t be happening until at least next year, with Labor focused on the integrity commission bill and budget.

The City on a Hill church’s founder, Guy Mason, defended the organisation publicly on Thursday, telling Sunrise it was an inclusive movement, while acknowledging his comparison between abortion and concentration camps was “wrong”.

Thorburn has declared it a “dangerous idea” that a faith could result in someone being deemed unsuited to a role.