Israel Folau Case Study - Freedom of Speech vs Breach of Employment Obligations

05 June 2019

After the controversial decision made by Rugby Australia (RA) to terminate Israel Folau’s contract, some continue to argue the decision is contrary to fundamental human rights of freedom of speech and freedom of religion.  However, can the freedom of speech and religious arguments overcome the employee/employer contractual relationship?

This article considers some principles of employment law in the context of the Folau dispute, including circumstances which may “bring your employer into disrepute” as grounds for termination of employment.

The values of your employer

It has been a recurring theme throughout the Folau saga that a fundamental value of RA is one of “inclusivity” and that the statements made by Folau do not align with this ideology. 

Clause 1.3 of Rugby Australia’s Code of Conduct (the Code) states that players are to: 

Treat everyone equally, fairly and with dignity regardless of gender or gender identify, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.

Whilst many (including Folau’s legal representatives) have argued Folau’s comments were not his own and they were simply an expression of his own beliefs, RA has argued they are a fundamental breach of the Code. 

Additionally, Clause 1.7 of the Code states that players must “use social media appropriately” and “not use social media as a means to breach any of the expectations and requirements of you as a player”. 

Although it has been widely published that Folau’s contract did not contain a specific social media clause, RA’s argument for termination is based upon the terms of their Code of Conduct, in that Folau’s use of social media breached his obligation to treat all others equally and fairly and fails to comply with RA’s overarching value of inclusivity.

To bring your employer into “disrepute”

Employers’ right to control employees’ conduct

Whilst employees such as Folau have a right to their own beliefs, there has been a development in a line of legal authority which allows employers to control the private conduct of their employees where the conduct has a relevant connection to their employment.[1] 

Put differently, to justify termination for an employee’s conduct outside of the workplace, the conduct in question must not be too remote from the employer and must directly conflict with the employer’s values.

The concern for high profile athletes such as Folau is that once his conduct enters the public domain, it is inextricably linked to his employer. What also goes against Folau’s position is that RA has given him a prior warning for comments he made against homosexuals on social media in April 2018.[2]

What has now become a precedent for establishing termination on the basis of an employee’s conduct “out of hours”, is that when viewed objectively, it must be satisfied:[3]

  • the conduct is likely to cause serious damage to the relationship between employer and employee; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.

It seems whilst the comments made by Folau were, as he argues, simply an expression of his own beliefs; when viewed objectively, they satisfy each of the points mentioned above and ultimately give RA justification for termination.

Commercial considerations for termination

With the prevalence of social media in the 21st century, it is now common practice for athletes to use their social media to promote their sporting clubs, their own personal brand and their game in general.  The “business of sport” is bigger than ever before, and regulatory bodies such as RA require athletes to ensure their image on social media is portrayed in a positive way which promotes the game.

Qantas, the Wallabies’ major sponsor, has publicly condemned the statements made by Folau,[4] with other sponsors closely monitoring the way RA chooses to handle the situation. Folau has also personally lost his sponsorship deal with ASICS, another major sponsor of the Wallabies, which again threatens the marketability of the RA brand. 

It is arguable that Folau’s conduct could damage RA’s commercial position by discouraging lucrative sponsor investment.  It is also arguable that Folau’s conduct is incompatible with his duties as a role model as a high profile professional athlete.

Conclusion

Whilst people’s opinions differ greatly in this discussion, from an employment law standpoint, Folau has a case to answer.  The argument that he is simply voicing his personal beliefs is unlikely to carry much weight in a legal proceeding – particularly as he has failed to demonstrate any remorse and has indicated his future intentions to continue to advocate for his controversial beliefs. 

With many expecting Folau to take his case to either the Supreme or Federal Court, the legal issues in the case will be further analysed and Folau could remain in the headlines for the foreseeable future.

If you have any queries in relation to Sports Law and Employment Law, please contact John Sneddon or Charlie Hodgetts.

John Sneddon, Partner
(07) 3307 4513
jsneddon@shandtaylor.com.au

Charlie Hodgetts, Lawyer
(07) 3307 4513
chodgetts@shandtaylor.com.au

 


 

[1] Hussein v Westpac Banking Corporation (1995) 59 IR 103, 107.

[2] “Israel Folau is a strong role model says Rugby Australia” ABC News.

[3] Rose v Telstra Corporation Limited [1998] IRCommA 1592.

[4] ‘Shame on you if it happens a second time: Qantas CEO’s warning shot to Rugby Australia on Israel Folau controversy’ Fox Sports, 10 May 2019.

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