Why Israel Folau’s legal case could set an important precedent within employment law

The very public sacking of Rugby Union star, Israel Folau has prompted much debate in relation to questions of religious freedom and expression within Australia and specifically whether an individual’s personal views can have a bearing on their employment.

In particular, Folau’s case raises legitimate arguments regarding how far an employer can go in relation to controlling an employee’s activities in their personal lives including in relation to the use of social media.

In this week’s article, we explore the central employment law issues raised in relation to Folau’s matter and how these concerns may be applicable to your workplace.

Background

Folau is a devoted Christian and is a lay minister for his church. He is often filmed preaching and baptising within his parish. Folau had a history of promoting his religious views, which many regarded as homophobic, via social media.

It is important to note that Folau was also an Australian Rugby Union representative, a sporting hero and was a contracted player for Australian Rugby. As such, his social media comments have resulted in a number of complaints to Rugby Australia who in turn spoke to Folau in order to moderate his social media comments in this regard.

Despite the previous warning, on 10 April 2019, Folau posted a meme of an image which listed a range of people (including drunks, homosexuals, adulterers, liars, atheists and thieves) and stated “HELL AWAITS YOU”. Folau then added: “Those that are living in Sin will end up in Hell unless you repent. God loves you and is giving you time to turn away from your sin and come to him.” This post provoked quite a public reaction.

In response to Folau’s social media post Rugby Australia announced that Folau had breached the Code of Conduct (“the Code”) and, having previously warned Folau about his comments on social media, they would be seeking to terminate his employment contract. Accordingly, Folau exercised his right under the Code to initiate a Code of Conduct Committee Hearing which ultimately found him guilty of a “high level” breach. This resulted in his $4 million contract being terminated.

Legal proceedings and legal issues

On or about 6 June 2019, Folau lodged an application with the Fair Work Commission under s772 of the Fair Work Act 2009 (Cth) (“FWA”) which alleges the termination of his employment was as a result of his religion and therefore unlawful. Specifically, s772 of the FWA states that an “employer must not terminate an employee’s employment for one or more of the following reasons…[including] race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carers’ responsibilities, pregnancy, religion, political opinion, national extraction or social origin”.

Accordingly, Folau will argue that even though he was required to comply with the Code, he was protected by discrimination law and exercised his right to practice his religion and express his religious views. As such, Folau will likely assert he was terminated for expressing his religious views and therefore the termination was unlawful. It is reported Folau is seeking damages of approximately $10 million for lost salary and compensation for opportunities foregone including sponsorships.

Rugby Australia will not, it appears, be relying on any express or specific clause within Folau’s contract, but rather, an argument on a general contractual clause that players must abide by the Code. In this regard, the Code outlines Rugby Australia’s core values (being passion, integrity, discipline, respect and teamwork) and that good reputation and positive behaviours are to be maintained by their players (and other personnel) in a safe, fair and inclusive environment for all. A further clause within the Code which is applicable to players states that players must use social media appropriately and cannot use social media as a means to breach any of the expectations and requirements as a player contained in the Code.

It is common for employers to include clauses which require employees to comply with codes of conduct or workplace policies. Rugby Australia are likely to rely on the fact Folau was required to comply with the Code and will assert that his social media post breached the Code. As unlawful termination is alleged, it will be up to Rugby Australia to prove the termination was as a result of Folau breaching the Code but not because of his religion, religious beliefs or the expression of those beliefs.

The conflict between an employer’s right to impose standards of conduct on its workers and an employee’s right to religious expression has not been properly tested in the Courts. As such, if Folau’s case does proceed (and does not settle), the Courts will need to determine how far an individual’s religious expression may go, and whether a person is able to express their religious views and/or quote from religious texts in any way they like, even if it is publicly objectionable, as Folau has done. This case raises the very thorny issue – the extent to which an employer can control an employee’s actions outside of the workplace. However, this is not a question of freedom of speech or expression. Australian law does not recognise such freedoms and generally any expression of views that brings an employer into disrepute will not be protected, and an employer will be entitled to terminate the employee’s employment unless such expression is specifically protected because it falls within the class of conduct that can be categorised as religious belief or other protected category.

Lessons for employers in your workplace

As demonstrated, Folau’s case raises legitimate questions in relation to what conduct an employer should be able to control and creates some uncertainty for employers. The Fair Work Commission and Courts have, on numerous occasions, confirmed that posting on social media and other objectionable out of work conduct, can impact an employment relationship and give rise to circumstances warranting dismissal, including immediate termination. However, in order to rely on serious misconduct as a reason for termination, and to protect the business’ reputation, employers need to clearly express their expectations in this regard, update workplace policies and consider educating staff about acceptable social media conduct and responsible use of technological resources.

In assessing whether social media use by an employee is inappropriate, a number of factors may be considered including:

• whether the employer was actually named;
• whether the employer can be identified;
• whether there is any connection to the company or business;
• who has access or could see the comments;
• how long the comments were posted and most importantly, viewed objectively, whether the comments would adversely affect the employer’s business or reputation; and
• whether the employer took action in relation to the comments at the relevant time.

Accordingly, in terms of best practice, we recommend employers undertake the following:

1. Audit workplace policies and procedures to ensure that the business has appropriate policies in place dealing with social media and out of work conduct which clearly explains the company’s expectations.
2. Audit your employment contracts to ensure they include appropriate clauses requiring the employee to act in the best interests of the company and not to do anything that brings the company into disrepute;
3. Ensure the employment contracts contain a clause allowing for the termination of employment in circumstances where the employee’s conduct either brings the company into disrepute or has the potential to do so.
4. At induction or orientation, ensure employees receive all up to date policies and procedure documents in hard copy and are told where they can be accessed online. Have the employee execute an acceptance document confirming receipt of the policies. Ensure these records are kept by the employer as part of its record keeping.
5. Ensure policies are regularly reviewed and updated. Most importantly, ensure any changes to the policies are well communicated and all updated policies are provided to employees.
6. Provide regular training on workplace policies to ensure employees understand the policies and the consequences that follow for breaches of the policy. We recommend providing training on workplace policies on an annual basis. Employers should keep an attendance register or log.
7. If the company becomes aware of social media comments posted by an employee which raises concern for the business, we recommend seeking appropriate legal advice swiftly.

If any of our readers require further information in relation to any aspect of this alert or need specialist employment law advice please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.