Freedom of expression vs the employer's right to regulate employee behaviour: why the Folau case wasn't about religion

Alana Hudson, Lawyer, Clayton Utz

The question of how far an employer's right to regulate employee behaviour extends is one that is vexed for both employers and employees. This battle of rights: an employee's right to hold and express personal beliefs versus the right of an employer to set boundaries on employee behaviour both for the protection of legitimate business interests and employee wellbeing, played out recently following Rugby Australia's termination of Israel Folau's playing contract after a controversial social media post. In the midst of what is a very polarising debate, it's critically important to understand what the Folau case was about; and it's not religion.

As a high-profile rugby union player under contract with Rugby Australia, Folau was required to comply with Rugby Australia's Code of Conduct, which prohibits players from, amongst other things:

  • using social media in a way that does not treat everyone fairly and with dignity regardless of sexual orientation;
  • engaging in any form of discrimination; or
  • acting in a way that may adversely reflect on the player, team, club, Rugby body or Rugby.[i]

Folau had previously made comments on social media in 2017 and 2018 that many regarded as homophobic, and resulted in complaints to Rugby Australia.[ii] Folau's contract was renewed in 2018 after he promised to curb his behaviour on social media.[iii] However in April 2019 he posted a picture on Instagram that read: “Warning. Drunks. Homosexuals. Adulterers. Liars. Fornicators. Thieves. Atheists. Idolators. Hell awaits you. Repent! Only Jesus saves” and which was accompanied by a Bible passage from Galatians.[iv]

Rugby Australia claimed that Folau had breached the Code of Conduct and terminated his contract. Folau brought a claim under s 772(f) of the Fair Work Act 2009 (Cth) (FW Act), which prohibits an employer from terminating an employee's employment on the basis of religion. However, there were fundamental issues with running the matter as a religious discrimination case.

The key question for the court was whether a contractual requirement that an employee not act in a way that brings themselves or their employer into disrepute, or to otherwise treat everyone fairly and with dignity, regardless of sexual orientation, was a breach of the prohibition on dismissing a person because of their religion.

The law in Australia is clear that the failure of an employee to follow an employer's reasonable and lawful direction (such as the matters contained in Rugby Australia's Code of Conduct) can constitute a valid reason for dismissal.[v] Folau's actions occurred in a context where he was aware of the Code of Conduct and the consequences of breaching it, having breached it on a previous occasion, received a warning in respect of this breach, and where his employer faced the potential loss of the withdrawal of a major sponsor.

The second issue for Folau was that the “freedom of religion” he claimed as a shield against dismissal arguably does not extend to a right to express religious views in a controversial way. Neither the FW Act nor the Australian Human Rights Commission Act 1986 (Cth) contain a definition of "religion". The Anti-Discrimination Act 1977 (NSW) (New South Wales being the state of Rugby Australia's headquarters and the jurisdiction that governs its employment contracts) does not have a protection against religious discrimination. Other state discrimination legislation such as the Victorian Equal Opportunity Act 2010 protects holding or not holding a lawful religious belief or view, and engaging in, not engaging in or refusing to engage in a lawful religious activity.[vi] It does not provide an express right to say anything, in any manner, in the name of religion.

Rugby Australia publicly stated that Folau was entitled to his religious views, however it was the way in which he expressed them that was inconsistent with the values of the sport, which are to be diverse and inclusive.[vii]

The conflict between the competing rights of employers and employees is the source of much angst within the community, and rightly so. The notion that we could be dismissed by our employers for something that was said on social media, outside of work hours, and not in an official capacity can be discomfiting. However, in the age of social media, where we have a greater capacity to express our views and be involved in popular debate, we must recognise that this comes with an increased ability to cause harm, and therefore carries greater responsibility.

While it is vitally important to ensure protections exist against discrimination, such protections as currently framed in operative discrimination legislation ought not be capable of being used as a shield against breaches of reasonable codes of conduct that:

  • are legitimately aimed at promoting inclusion and diversity or the protection of an employer's legitimate interests;
  • are fairly applied; and
  • do not unfairly impinge on other rights.

The Folau matter settled following mediation, meaning the opportunity for useful legal precedent was lost. However, in circumstances where the offensive nature of his breach was the focus of his dismissal, rather than his religious beliefs, the claimed religious discrimination simply distracts from the real issues at play.

To read the extended article Freedom of expression vs the employer’s right to regulate employee behaviour: why the Folau case is not just about religion' subscribe to our Employment Law Bulletin.

  Alana Hudson
T +61 3 9286 6873

[i] Rugby Australia Code of Conduct, cll 1.3, 1.6, 1.7.
[ii] M Toten “The Israel Folau Case: what are the employment law issues?” Workplace Info 26 June 2019
[iii] Above n 22.
[iv] P Johnson “’Hell awaits you’: Israel Folau embroiled in another anti-gay social media storm” 11 April 2019
[v]Lambeth v University of Western Sydney [2009] AIRC 47 at [47]; Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.
[vi] Equal Opportunity Act 2010 (Vic), ss 4, 7.
[vii] B Newman "UPDATE: Israel Folau has been stood down by the Waratahs until further notice with Rugby Australia and NSW Rugby signalling their continued intent to sack the Wallabies star" Rugby Australia 12 April 2019

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