“WARNING – Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators – HELL AWAITS YOU. REPENT! ONLY JESUS SAVES”
Is Israel Folau a well-intentioned Christian who has a right to free speech and deserves a second chance, or is he a divisive zealot that should find another platform to preach and to vilify significant sections of the community?
While his employer, the Australian Rugby Union (ARU), appears to be going out of its way to afford him due process, the issues at stake seem to have run away. Freedom of speech, anti-discrimination laws, religious principles, nanny-states…
Forget all that. It’s interesting, but ultimately it’s not relevant.
So what is relevant?
The ARU Code of Conduct policy, published on the ARU website, says: “Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.”
Another section states: “Do not use Social Media as a means to breach any of the expectations and requirements of you as a player.”
It is safe to assume that because he has just gone through a “Code of Conduct” enquiry, that there is a term in Folau’s contract that says that if he were to commit a breach of the Code of Conduct, or otherwise engage in conduct that brings the ARU and/or their sponsors into disrepute, that constitutes a breach of contract that would allow his employer to, amongst other things, terminate his contract.
It is well documented that Folau was sanctioned for a similar post in April 2018. What is less well known is that he lost LandRover as a personal sponsor over that incident. There is a dispute over what discussions took place between him and the ARU following that post.
What is also relevant is that there is a lot as stake. He has a 4 year fixed term contract worth $1M a year. He also has some remaining personal endorsement deals. He is worth a lot to the ARU because he is a gifted rugby player and because the ARU have spent a lot of money promoting him as the face of the game.
If the ARU is right and he has committed a high level breach of the Code of Conduct, they could terminate his contract and pay him nothing. He may even be liable to them for damages. If Folau is right and he has been discriminated against and his contract unlawfully terminated, he gets the balance of his contract term paid to him. He may even seek reinstatement.
Whether his employment agreement contains specific terms concerning the use of social media should not matter. The general terms of his agreement and established employment law principles will cover that.
It doesn’t seem too onerous for the ARU to say: “You are paid to play rugby, represent the ARU and to live the Code of Conduct. When you are the face of the sport and you have 356,000 followers on Instagram, you cannot use your ‘private’ social media to express views which could bring us or our stakeholders (sponsors and supporters) into disrepute. If you choose to act in a way that is controversial and breaches to Code of Conduct, you’re in breach of your contract.”
It’s unlikely that any reasonable person would think that publishing the statement “Homosexuals – Hell awaits you” would not offend the ARU’s principal sponsor QANTAS, or that the statement would be regarded as treating gay people with dignity.
It is significant that the Instagram post is still up there and Folau stridently stands by it.
Sportswear brand ASICS has recently cancelled Folau’s endorsement contract because of his post.
Folau may have some protection under the “general provisions” of the Fair Work Act 2009, which make it unlawful for employers to take “adverse action” against employees for exercising legitimate workplace rights. It is also unlawful for employers to discriminate against employees on the basis of their age, gender, religion, race or sexuality. He might even argue that the Code of Conduct is “uncertain” and has to be read in the context of any legal right he, or his congregation, claim give him the right to express his personal views as a private citizen.
It seems likely that a Court may have to go through all of this, to end up at the point where it determines that employees cannot use their religious views, however genuinely they are held, to openly offend or vilify others. It would follow that employers can lawfully terminate the employment of an employee who does that (despite being counselled not to do it again), who does not apologise for it and who is not prepared to commit to not doing so again.
If you’re an employee, understand what your obligations are concerning your conduct outside of work, including your use of social media.
If you’re an employer that values your reputation and brand, review your employment agreements and take steps to ensure your staff are aware of how their conduct outside of work can impact on their contract obligations. It is regarded as best practice to document your dealings with staff, including contract reviews, social media training and counselling sessions.
When the dust settles, the cost and the damage will be significant. The ARU’s investment in Folau is wasted. Sponsors are not happy. Fans are not happy (especially in a World Cup year) and Folau will most likely be lost to the game for good.
No winners there.
Peter English is the director and founding partner of Surry Partners Lawyers.