Israel Folau is the latest in a long line of employees who have lost their jobs for publicly expressing controversial views. But will his case change everything?

It was a single Instagram post that ended Israel Folau’s career as a star player in Australia’s national rugby union team. On April 10, Folau shared an image declaring that homosexuals – among other supposed “sinners” – would go to hell unless they repent for their sins. 

It wasn’t the first time Folau earned a reprimand from Rugby Australia (RA) for making homophobic comments. Twelve months earlier the devout Christian had published a comment on Instagram expressing similar views. At the time, RA opted not to formally penalise Folau. But in 2019, the sporting body was not so lenient and issued him with a breach of contract notice. At a subsequent hearing, RA terminated Folau’s contract, prompting the player to begin legal proceedings against RA under Section 772 of the Fair Work Act.

The case presaged a long-overdue showdown between codes of conduct and discrimination law in the courts, with RA asserting that Folau’s actions constituted a high-level breach of its Players’ Code of Conduct, while Folau’s defence claimed he was fired for expressing religious beliefs.

The case has triggered a nation-wide debate around how much control an employer has over its employees. It has also put the issue of religious freedom firmly on the national agenda. 

Breaching a code of conduct 

For a dismissal due to a high-level contractual breach like Folau’s to be upheld, the conduct in question must be shown to have the potential to adversely impact the employer’s interests. No one is questioning Folau’s skills or commitment – he’s a three-time winner of the John Eales Medal for the Wallabies’ Player of the Year. 

“The question then arises as to the extent to which RA can regulate his conduct off the field,” says workplace relations lawyer Michael Byrnes, partner at Swaab Attorneys. “There is a very compelling argument that his obligations to RA don’t begin and end on the rugby field, even though that’s the main part of his role.”

Cases like Folau’s must be assessed on an individual basis, says Byrnes. RA relies on a strong sponsorship base and support from the general public to remain relevant as a national sporting code. Folau’s public profile means there is a strong argument that RA has a right to regulate what he does in his private time, as it impacts RA’s interests. “What might apply to Israel Folau does not necessarily apply to others, because they aren’t public figures – they don’t have an ambassadorial role,” says Byrnes.

But some think that no employee should be held to such a high standard. Josh Bornstein, national head of employment law at Maurice Blackburn and an employment lawyer who has acted on behalf of several high-profile clients in unfair dismissal and general protections cases, is an outspoken critic of employment contracts regulating the out-of-hours behaviour of employees. He has been featured in several media outlets commenting on the case.

He argues that codes of conduct that require an employee to act with fairness, decency and integrity around the clock are impossible to comply with all of the time, are arbitrarily enforced and don’t require employers to uphold the same values.

Invoking the Fair Work Act

Folau’s defence hinges on section 772 of the Fair Work Act, which says an employer must not terminate an employee’s employment on the basis of “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.” 

Rather than explicitly protecting freedom of speech, the Act “sets the limits of what an employer’s prerogative is,” says Byrnes. “If an employer seeks to terminate the employment of an employee based on something they’ve said that doesn’t affect the interests of the employer, then it’s likely there won’t be a valid reason for termination and, therefore, it will be an unfair dismissal.”

Section 772 refers to religion, but makes no mention of religious practice. “On a narrow reading of Section 772, unless RA terminated him because he is Christian, then it’s not an unlawful termination,” says Byrnes. 

It remains to be seen whether the court will accept that sharing views via an Instagram post – compared to, say, observing a religious holiday – represents practising one’s religion. 

“If a broader view is taken and it is considered that what he was doing was a necessary religious observance, then that would strengthen his position,” he says.

Industrial relations and employment lawyer Aaron Goonrey, partner at Lander and Rogers, says Folau’s case will test the employer’s rights against the protections offered by Section 772. Despite being the subject of several high-profile cases in recent years, it’s a legal sticking point that has remained untested. 

In a case that shares similarities with Folau’s, SBS sports reporter Scott McIntyre posted a series of tweets on Anzac Day in 2015 about the disreputable actions of Australian soldiers in theatres of war. McIntyre’s comments generated an enormous amount of controversy and attracted the condemnation of then communications minister Malcolm Turnbull. SBS dismissed McIntyre for breaching the company contract.

McIntyre sued SBS for unfair dismissal under Section 772, claiming that he was fired for expressing his political opinion. SBS claimed McIntyre was not dismissed for his political views, but for breaching the organisation’s code of conduct and social media policy. 

SBS claimed that McIntyre’s refusal to apologise for his statements brought the organisation into disrepute and that the reporter’s position at the broadcaster had become untenable. McIntyre and SBS reached a settlement three days before a scheduled hearing at the NSW Federal Court in 2016. 

“Where we don’t have a clear precedent yet is where the rights of the employer clash with discrimination law protections for employees,” says Anthony Forsyth, professor of Workplace Law at RMIT University.

The reason Folau’s case might change that is his desire to get his day in court. In July, his legal team lodged an eight-page claim with the Federal Circuit Court in Melbourne that argues he was unlawfully dismissed because of his religion and seeks compensation, an apology and reinstatement. And just this week they handed in a 26-page statement to the same court arguing the firing was an “unreasonable restraint of trade” because it makes it impossible for him to play international rugby (as he’s only eligible to play for Australia) or to play for an Australian team in Super Rugby. As such, they say it is “contrary to public policy and void”.

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Enter the web

The advent of social media changed the legal landscape. “Everyone is now their own personal journalist and publisher via social media,” says Goonrey. A distasteful joke shared in private is unlikely to result in dismissal, but the same joke shared on social media might find an employee guilty of damaging their employer’s brand and in breach of their employment contract. 

“In the last few years, employers have brought in social media policies that restrict the kinds of things employees can say online, sometimes even in a private capacity,” says Forsyth. “There have been cases where employees have ranted on Twitter, and that’s brought them into breach of certain policies.”

In 2013, Cameron Little, a customer relations manager at Credit Corp Group, sued for unfair dismissal after being fired for several offensive Facebook posts. 

The Fair Work Commission upheld his termination, with deputy president Peter Sams finding Little’s “grossly offensive” conduct had seriously damaged both the employer-employee relationship and his employer’s interests, and so was incompatible with his duty as an employee of the organisation.

 “The applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the company,” Sams wrote in his ruling. 

In one case where an employee successfully sued for unfair dismissal, Linfox truck driver Glen Stutsel made derogatory comments about his managers on his public Facebook page in 2011. When one of his managers saw the posts, she made an official complaint and the truck driver was then fired for serious misconduct.

The FWC, however, found that the driver’s employment had been unfairly terminated. While Stutsel’s comments may have been “outrageous”, it was found they did not constitute a personal attack on his employer or managers. Instrumental to the finding was the fact that Linfox had no specific social media policy in place at the time. 

Exceptions to the rule

In the same month Folau shared his post, Dr Peter Ridd won an unlawful termination case against James Cook University after he was fired for criticising colleagues on Sky TV and in private emails. Like RA and SBS, James Cook University claimed that Ridd was not fired for his views, but for breaching the institution’s code of conduct regarding issues like confidentiality and communication. But the presiding judge found the guarantee of academic freedom enshrined in the university’s enterprise agreement overrode the code of conduct.

“In academic employment, there are additional protections of people’s rights to speak and to engage in intellectual and political discussion under their enterprise agreements,” says Forsyth. Ridd’s case was an example where “somebody did succeed in asserting their rights to express a political opinion, but only because there was an additional source of protection. Rather than relying on discrimination law, his enterprise agreement guaranteed him the right to express his views.” 

The way forward

Some critics claim codes of conduct and contractual law grant employers too much control over their employees’ private lives. Byrnes says, “Some codes of conduct are poorly drafted, poorly considered and do overreach.”

Bornstein, who represented both McIntyre and Williamson in their unfair dismissal cases, argues that the connection between the behaviour of an employee and their employment is increasingly indirect. “It’s all about brand management,” he told podcast host Tom Ballard. “Anything that is controversial can be said to be relevant to a brand.”

There’s also the question of who is relevant. While the comments made by Stutsel, the Linfox truck driver, were arguably more offensive than McIntyre’s, the sports commentator’s profile gave extra credibility to the claim that his actions damaged his employer’s reputation.

Even anonymity isn’t necessarily a protection. Former Department of Immigration and Border protection employee Michaela Banerji – who was fired for tweeting criticisms of the department from an anonymous account – lost a High Court fight over an injury claim. Crucial to the decision was the public service code of conduct’s stipulation that online anonymity won’t last, and the importance the Public Service Act places on an “apolitical and professional public service”.

Bornstein argues it’s up to the government to regulate speech, not organisations, saying that Australia lacks “a federal law that sets out to protect gay people from vilification”. Others have seized on Folau’s case to call for exemptions for religious beliefs from employment contracts at the same time as the federal government finalises a religious freedom bill it plans to table in parliament before the end of the year.

Forsyth says Australia needs “stronger protections of the rights of employees to express their own religious or political views, in order to fully participate as citizens in a democratic society. Contracts and codes have been used to silence employees – unfairly – in the interests of protecting employers’ brands.” 

In Australia, where we lack a Bill of Rights, many of the freedoms we take for granted are implied freedoms. “All these freedoms that we talk about, the freedom of assembly, the freedom of expression, the freedom of speech, the freedom of religious belief and practising what you believe in, are an amalgamation of different laws,” says Goonrey. 

He also says that while a Bill of Rights would offer clarity to a case like Folau’s, it would not give an individual carte blanche to exercise their rights. Any freedoms it afforded must not affect the freedoms of others.

But for now all eyes are on Folau. “If it goes to a hearing, this will be an important case,” says Goonrey. “It will set up how employers in the future deal with employees, particularly in relation to religious expression.”

This is an edited version of an article that appears in the September 2019 edition of HRM magazine.

Photo: Israel Folau attends Fair Work Commission Hearing, taken by Mark Metcalfe/Getty Images