How can using the ‘wrong tone’ end Israel Folau’s career?

Israel Folau leaves his conciliation meeting with Rugby Australia at the Fair Work Commission in June. Picture: Getty Images

“Rugby Australia’s objection to the posts at issue was not their religious content but rather their tone and attributes.” Did RA boss Raelene Castle watch The Castle and rework Dennis Denuto’s “vibe of the thing” into the “tone of the thing?” If RA’s killer point, outlined in its defence filed on Friday, is enough to allow them to sack Israel Folau, then we are all in trouble. If the wrong tone in an employee’s social media post, rather than the substance of that post, is enough to end a career, what’s next?

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RA has made a number of assertions in its defence filed in the Federal Circuit Court last Friday afternoon, and served on Folau’s legal team the same day. To avoid the accusation that they sacked a man for his religious beliefs, RA’s defence is that they sacked Folau because of the tone of his posts. This is how RA plans to fend off claims by Folau that his termination was unlawful for breaching section 772 of the Fair Work Act which makes it illegal to terminate a person’s employment for reason of, or for reasons that include, his religion. RA also claims that Folau knew his social media posts in April last year, and again in April this year, were offensive to some people, and that Folau freely contracted to curb his social media usage, and that he conceded breaching his contract during a code of conduct tribunal hearing earlier this year.

RA’s core defence about the tone of Folau’s posts is nothing short of extraordinary. Who gets to determine what is an unacceptable “tone”? If RA does not object to the religious content of Folau’s posts, that must mean that Folau is entitled to say homosexuals will go to Hell, but only if he says it nicely. It means that RA accepts there could have been a way for the rugby champion to express the same sentiment, and not get sacked. What formula of words would RA have found acceptable?

RA boss Raelene Castle claims that she told Folau he had “hurt and offended some people with his comment” in April last year that homosexuals would go to Hell, and that he needed to be “considered and respectful” in his social media posts. Folau, a Christian, believes that his religion is both considered and respectful. Folau, an evangelical Christian, also believes that his calling is to evangelise his beliefs in his own personal time.

Rugby Australia CEO Raelene Castle. Picture: Getty Images

Two core issues — control and consequences — sit at the heart of RA’s defence. First, RA claims the legal right to control how Folau expresses his religious faith away from the workplace. Second, RA claims the right to impose the most severe consequences on Folau for failing to meet their demands.

This case will decide how much control an employer can or should have over an employee’s life away from his or her job. Sporting bodies have long claimed control over how a rugby player behaves off the sporting field, for example requiring that they should not break the law by taking drugs or engage in violent behaviour because this brings the game into disrepute.

RA’s defence is that its legal authority reaches into new territory, claiming a legal right to control how a rugby player may or not paraphrase the Bible. Contrary to some claims, RA cannot point to a specific clause in Folau’s contract aimed to control his social media usage. There is only a generic clause in a code of conduct (although, to be clear, that code is incorporated into his contract). Given the high stakes, and in fairness to Folau, shouldn’t RA have given precise explicit instructions to Folau about his social media usage before they used a generic clause in a generic code of conduct to sack him?

If the court decides that RA was entitled to sack Folau using an entirely subjective measure about “tone,” it will arm employers with tremendous power drawn from generic and widely worded codes of conduct to legally control the tone of an employee’s posts about their religious beliefs on private social media platforms.

Worse, it will mean that employees can be sacked at will by an employer for entirely subjective, highly contestable “tone” offences about which Folau was given no clear definition or direction during his many conversations with RA.

This leads to the second issue thrown into stark relief by RA’s defence filing. This dispute goes far beyond people disagreeing with Folau’s religious beliefs, or condemning his views, or choosing to take offence over his social media posts. It presumes that enormous consequences can legally flow from people taking offence from a few social media posts about biblical teachings. In employment law, there is nothing more enormous than bringing a person’s career to an end.

RA has hung much of its defence on the decision of the tribunal earlier this year that the “termination of [Folau’s] Player Contract was the only clear practical way for Rugby Australia and Rugby NSW to distance themselves from the views of Mr Folau’s in order not to be seen to be condoning those views, and to protect themselves from further damage.”

Folau’s legal team will surely challenge this in its response which must be filed by October 4. Coupled with a clear public condemnation of Folau’s social media posts, RA could have suspended Folau. RA could have said the sporting body vehemently disagrees with Folau, that his views are offensive to some, but that posting his religious beliefs on private social media platforms has no bearing on the game of rugby. There were plenty of other options. RA might have been more strategic, understanding that by taking the nuclear option, they turned Folau into a celebrity martyr and caused damage to the game, and RA’s reputation.

RA has gone to great lengths in its defence to say that its termination rests on Folau’s concession at the tribunal hearing that he breached the code of conduct. It is true that Folau made concessions at the hearing — to try to mitigate the damage and lessen any penalty — rather than to hand RA the justification to sack him. Folau seems to have put little faith in the Tribunal hearing. Indeed, his legal team must have been concerned that RA had a self-serving agenda in nominating Kate Eastman SC to the three-person code-of-conduct panel which ruled on Folau, given Eastman’s long history of pushing for new “rights” against discrimination in the workplace and in the law.

RA also claims that fundamental principles of freedom of contract mean that Folau knowingly agreed to restrict his social media usage. Expect Folau’s team to point out that the entire industrial relations system, including the Fair Work Act, is premised on limiting what can and cannot be agreed between parties of unequal bargaining power. And that Section 772 cannot be contracted out of.

The central question remains whether Folau was sacked because of, or for reasons that included, his religion. On this point, RA bears the onus of proving that the “tone” of the thing was enough to warrant terminating Folau’s contract. Dennis Denuto, eat your heart out.