RMB Articles

Folau Case Full of Confusion and Conflicts

Posted 23-08-2019
Written by admin 101
Category Compensation

RMB Lawyers Compensation division looks at a case that is dominating the media headlines:

The employment law dispute between Rugby Australia and Israel Folau has dominated media headlines for months now.

You would be forgiven for being confused about the case. Shock jocks are protesting religious freedoms and protection of free speech, whilst others are campaigning for the protection of minority groups from discrimination.

So what are the real issues?

In 2018, Folau posted comments concerning his views of homosexuals (among other groups) as specifically relates to his religion. Huge fallout followed, with Rugby Australia and sponsors faced with a backlash from the sport’s supporters and the wider community.

Rugby Australia was able to reconcile with Folau, who was cautioned over such behaviour in the future. Folau’s contract was renewed in 2018, specifically referencing the use of social media. Policies were also implemented to avoid a repeat of the circumstances.

Approximately 12 months later, Folou made a second social media post conveying virtually the same message as before.

Despite previous warnings and Rugby Australia’s attempts to resolve the issue quickly, Folau stood by his comments and showed no contrition.

Ultimately, Folau was terminated for breach of his contract.

But was Folau’s use (or misuse) of social media sufficient to warrant his dismissal? In dealing with that question, the Courts and Tribunals have typically looked at the following factors:

  1. Did the employment contract cover the use of social media?
  2. Did the employer have a policy regarding the use of social media by employees?
  3. Did the employee’s social media post identify the employer?
  4. Were the social media posts likely to adversely affect the employer’s reputation or its business?
  5. Were the social media posts likely to pose a threat to the health and safety of other employees?
  6. Did their content of the social media post breach anti-discrimination legislation (or any other law)?
  7. Were the social media posts made “in the course of employment”?

Applying those factors to Folau’s case, the facts appear to satisfy most of those requirements. However, the case comes down to one element: did the conduct occur in the course of employment?

Rugby Australia will undoubtedly argue “yes”; Folau will argue “no”. Further, Folau will likely argue that his religious freedoms cannot be silenced by the terms of a contract, even if the contract expressly prevents him from doing so.

It will be interesting to see how the Courts address those issues. If you have a question about this case or employment ocntracts, please  contact us. We'll be able to help you via a quick phone call, or ask us a question via email.