Israel Folau’s contract with Rugby Australia had no specific clause about social media use
A Rugby Australia contract bungle could give controversial Wallaby Israel Folau the upper-hand in his fight with the governing body. SEE OUR BREAKDOWN OF THE ARGUMENTS FOR AND AGAINST FOLAU.
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Gay employees at Rugby Australia could have grounds for action against their employer or Israel Folau if he successfully appeals his termination for homophobic social media posts.
The Daily Telegraph understands that after re-signing with his employer for four years in a deal worth $4 million, RA then attempted to have additional social media clauses inserted into Folau’s contract.
But because the contract had already been signed, Folau refused, and the contract remained standard.
This bungle could be used by RA employees to prove the employer did not take necessary measures to protect them under the NSW Anti-Discrimination Act.
SEE BELOW FOR THE CASE FOR AND THE CASE AGAINST
Folau is expected to appeal RA’s decision to sack him by heading to a code of conduct hearing, which is likely to stretch into next month given the numerous public holidays coming up and time it will take to assemble an independent three-person panel.
The Wallabies star has until 2pm on Wednesday to lodge his intention to fight termination, and it’s understood he will.
RA will rely on the argument he has breached the standard player code of conduct by vilifying people based on their sexuality, and also breached the official warning letter he was given last year by making similar posts.
Folau is expected to argue that he has not intentionally vilified anyone because of their sexuality, but is merely quoting scripture from the Bible, and is being punished for expressing what is stated in his religion.
The lack of a specific social media clause will form a big part of Folau’s defence, calling into question the process undertaken by RA chief Raelene Castle and her team when re-signing the star this year.
It is uncharted territory for Australian sport and workplace law.
However, if Folau was to win his case, lawyers say it could open the door for action by other RA employees who feel vilified by Folau’s posts – including members of Australia’s women’s rugby teams who are gay.
“If one employee is in the workplace engaging in behavior which is vilifying another worker based on sexual orientation, that could be in breach of the Equal Opportunity Act or the NSW Anti-Discrimination Act,” said Kamal Farouque, a principal lawyer for Maurice Blackburn’s employment practice.
“They could take action against Rugby Australia as their employer under vicarious liability for the conduct of the employee, or they could take action against the individual Folau.
“The employer might take various measures to say they took reasonable steps to prevent the employee’s acts of perceived vilification.”
It’s understood no RA employee has yet made a formal complaint against Folau
But should he win his case and be reinstated by the NSW Waratahs, RA employees may have legitimate claims as to whether their employer took enough steps to protect them after last year’s controversy, or directly go after Folau.
The NSW Anti-Discrimination Act 1977 (Section 49ZT) states: “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group”.
This could be the most complex legal case ever seen involving an Australian athlete, as explained by a spokeswoman for The Workplace Employment Lawyers.
“RA will no doubt argue that, in the circumstances, Folau breached the terms of his contract as well as RA’s lawful and reasonable direction in its policies by making public statements he had previously been warned against making,” she said.
“‘Free speech’ in the workplace is qualified by employees’ obligations under their contract. In this case, it appears that Folau was told about RA’s policies and its expectations in relation to his conduct.
“Given the history, and as Folau is a public figure, RA is likely to have grounds for taking disciplinary action which may include termination of his contract.
“Folau, on the other hand, will seek to argue that disciplinary action against him is discriminatory, based on his religious beliefs. NSW legislation does not cover discrimination on the grounds of religion, but these grounds exist under federal anti-discrimination legislation and the Fair Work Act 2009 (Cth).”
As for potential action by RA’s gay employees against them or Folau should he win, she said: “The NSW Anti-Discrimination Act protects against a ‘public act’ which amounts to vilification.
“We are not aware of any case law considering vilification in the context of argued religious expression in the workplace.
“However, recent cases show that vilification via social media is being considered by the courts.”
THE CASE FOR
Israel Folau is not being deliberately hurtful.
He is not running up to homosexual people on the street and telling them they’ll burn in hell.
All he has done is share a bullet point poster of scripture from Corinthians 6: 9-10, which states: “Or do you not know that wrongdoers will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor men who have sex with men nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.”
It’s right there, in the holy book, and Folau feels duty bound as a man of deep Christian faith to share that.
If you’re going to punish him, you are belittling the words that millions of people believe in.
It is not fair to sanction him simply for sharing his religious beliefs; that is walking down a dangerous road where the rights of an individual to religious expression are impinged by their employer.
And there is no specific clause in Folau’s contract stating he can’t share these beliefs on social media.
Folau is not the only player in Australian rugby to hold these beliefs. Will RA enforce a ban on all players not to share religious doctrine that may offend some sections of the community? Why have they not sanctioned Samu Kerevi and Allan Alaalatoa, who ‘liked’ Folau’s controversial Instagram post?
The Bible is what Folau uses to form all of his moral judgment. This is the same for a vast number of Australians.
He does not get to decide which scriptures to believe and which to dismiss; he must accept all of God’s words.
And as a high-profile Christian, he is obligated to share these words and spread the message that only through Christ can we be saved from our sins.
He has not bashed anyone, sexually assaulted anyone, or cheated to win games.
Yet unlike those in Australian sport who have, he is set to lose his job for good.
THE CASE AGAINST
If Israel Folau wins his case against Rugby Australia, every sporting code in the country will be powerless to stop their athletes posting homophobic content on social media.
The precedent will have been set.
Laws in Australia are set up to protect people from being vilified for their sexual orientation; you don’t get to use religion as a means to wriggle your way out of that.
Folau knew the hurt he caused the gay community last year when he wrote they were destined for hell.
After much negotiation, RA decided not to sanction him because he was expressing a religious conviction and they want to be inclusive of all beliefs.
But he was issued with a formal letter warning him of severe consequences if he repeated any comments that vilified homosexuals.
That letter sits with his employment file and will be a key weapon in RA’s case against him.
Folau said last year he didn’t mean to hurt people; he was only sharing beliefs stated in the Bible. He can’t claim ignorance now.
Numerous people wrote to him and RA on social media last year saying that sort of rhetoric led them to attempt suicide, but Folau decided to post again.
RA took all steps to ensure that Folau was not outcast for his beliefs, but made it clear that any comment he made that would vilify people based on their sexuality would be punished.
The outcry over “free speech” would be very different if a Muslim athlete wrote that “infidels were destined for hell”. Or if they shared this scripture: “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be upon them”.
By the way, that’s not from the Koran. It’s from the Bible; Leviticus 20:13.
If Folau wins, we can expect to see much more of this kind of content circulating on social media, without consequence.
- Jamie Pandaram
Originally published as Israel Folau’s contract with Rugby Australia had no specific clause about social media use
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