July 2019 | Kieran Kelly
Israel Folau’s Instagram comments have reverberated well beyond the confines of Australia’s rugby union community.
Rugby Australia was stuck in an invidious position. Its biggest star and arguably best player had once again made comments that clashed with, many would say, established standards of respectful public discourse.
Rugby Australia’s hastily convened panel that included John West QC, Kate Eastman SC and John Boultbee AM, decided to terminate Folau’s contract, reportedly on the basis that his conduct constituted a “high-level breach” of the Professional Players’ Code of Conduct (Code).
Without having the Code in front of us, we can only surmise that it contains, as is common for professional sports contracts, a wide range of provisions that seek to control Folau’s conduct in public.
Folau has now taken his fight to the Federal Court, where there is likely to be a contest between Rugby Australia arguing that it is entitled to enforce the Code and Folau arguing that he has been discriminated against on the basis of his religion.
The current state of the law will make it difficult for Folau to counter the strict contractual argument that will likely be run by Rugby Australia. There are no previous analogous cases, although courts have typically supported the right of employers to regulate employee’s standards of behaviour.
This is also where the case diverges from a more common workplace scenario, where contractual obligations are often less rigorous. It also differs in that Folau was unable to bring an unfair dismissal claim due to the high income threshold.
In this digital age the scenario is not uncommon. With a multitude of social media platforms, employees often engage with the general public in a variety of ways.
If an employee posts material online that is considered by the employer to be at odds with the ethos of the employer, several factors need to be taken into account before the employer takes any steps against the employee. These factors include the applicable contractual provisions, the seniority of the employee and the capacity in which the material was posted. For example, it is common for employees to indicate that comments posted online are being posted in their private capacity.
These distinctions are often murky and each case must be dealt with on the basis of its particular facts.
We suggest:
- If an employer has concerns about the conduct of its employees outside of the workplace, it should first consider the contractual provisions that are in place and whether it should implement an updated code of conduct; and
- If a particular employee has engaged in conduct that is concerning to the employee, legal advice be obtained before taking any adverse action against the employee.
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