Israel Folau - Breach of contract or right to free speech?

[SirRumpole]

No doubt Folau's comments were offensive to some people but the question I have is how much rights should an employer have to regulate the private lives of their employees ?

Folau's religious convictions have no impact on his ability to play football which is what he is employed to do, so why should his employer have a say in what he says when he's clocked off and no longer under the control of his employer ?

I reckon the ARU has breached his civil rights to hold and express an opinion while not 'on the job' and if they sack him he should sue them.

 

[jbocker]

There is no such thing as real free speech with your employer.
You can say what you like against the bosses wishes but it will probably cost you.

 

[wayneL]

This is a tough one in my opinion. Israel has every right to speak his opinion but we also must recognise the right to the Liberty of his employer organisation to exercise their rights.

I believe they are a hierarchy of liberties and and where the superior right is in this case I just do not know.

On the one hand I don't think it was very smart for Israel to have said that on a public forum, but also I think it is incredibly mean-spirited for the rugby union to take this action.

Either way the Australian Rugby Union may suffer the consequences of their actions also, who knows?

 

[Smurf1976]

In principle I'm in the "right to free speech" camp so far as any normal run of the mill employee is concerned. If it has nothing to do with the employer's business, is done in personal time and is not in any way using company resources then no problem. FWIW I've always worked under rules very similar to that.

That said, I do see the point that a professional sports player is a bit like a politician or CEO. Highly paid and never truly off duty so far as representing others is concerned. There's a valid point in that context not about his views as such but about publicly expressing them.

Free speech as a concept however is not "subject to......". Either you have free speech or you don't, by the very nature of the concept what someone's saying doesn't change that.

What I see wrong with the seemingly modern "only if it's acceptable content" approach is that if we turn the clock back a relatively short period of time, half a human lifetime or so, well anyone advocating that homosexual acts ought not be illegal or that the natural environment ought to be protected was very much expressing a view that was against mainstream thinking at the time.

Had what seems to have become the modern approach of censorship been applied back then, well anyone simply advocating that being gay shouldn't be a crime would never have been given space in newspapers due to their views being at odds with the mainstream and the church. Likewise the TV stations would never have run the films the environmental movement desperately wanted to air given those on the other side were a source of paid advertising. The news editors may well have disagreed but they still ran the story they disagreed with because doing so was the proper thing to do from a freedom of speech perspective.

I absolutely disagree with this man's comments in so many ways but the notion of supporting free speech by its nature means accepting others saying things I don't agree with.

 

[rederob]

No doubt Folau's comments were offensive to some people but the question I have is how much rights should an employer have to regulate the private lives of their employees ?
Folau's religious convictions have no impact on his ability to play football which is what he is employed to do, so why should his employer have a say in what he says when he's clocked off and no longer under the control of his employer ?
I reckon the ARU has breached his civil rights to hold and express an opinion while not 'on the job' and if they sack him he should sue them.

ARL has no issue with his right to have an opinion.
However, contracted players cannot damage the brand.
Separately, influential members of any society should be setting an example.
The example set by Folau is not one that seems reasonable to condone.
I think Ian Roberts made some pretty good points about what happens when high profile players make comments which are unacceptable to a fair size chunk of Australian society.

 

[SirRumpole]

However, contracted players cannot damage the brand.

He hasn't, if anything he has damaged himself.

The ARU can simply disassociate themselves from his comments, it's not a sacking offence.

 

[moXJO]

"Drunks, Adulterers, Homosexuals"
He basically told Australia you are going to hell.
He had a right and religious freedom to say it. I don't think there was a social media clause in his contract either.

But I don't think that exempts him from the consequences of public response. It will cost rugby Australia millions in sponsors and legal/public relations.

Islanders can be very religious.

I think there are few issues here. One being his right to say it. This was a quote from the bible so is the bible now up for censorship. No, thats not really the argument. But it feels like its coming close from some segments of society.

And the other is how players conduct themselves when representing a business, brand or organization. So contracts should be moving with the times (many businesses already have a clause) where it directly stipulates what can and can't be done or said.

In this case I beleive he didn't have that particular clause in there. But its still covered.

The argument would be interesting to see though. How will they spin quoting the bible?

A lose- lose case.

 

[rederob]

He hasn't, if anything he has damaged himself.
The ARU can simply disassociate themselves from his comments, it's not a sacking offence.

That's naive.
Folau is a contracted player.
He's definitely breached the players' Code of Conduct.
I do not know what constitutes a sacking offence but my view is that Folau's conduct does not meet that threshold.
Rugby Australia knew before resigning him that he was a media liability, and his individual contract demanded in my view that a clause about social media commentary were without controversy. If that clause is not there, then RA is up shyt creek.

 

[rederob]

This was a quote from the bible....

It's not in mine.
He could have got these from the Bible, but seemed to overlook them:

• selling one’s daughter into slavery (Exodus 21:7)
• stoning one to death for working on the Sabbath (Exodus 35:2)
• women not being permitted to speak in church (Corinthians 14:34)
• not wearing clothes woven from two materials (Leviticus 19:19)
• not eating shellfish (Leviticus 9:10).

I guess it depends which god people choose as to the foolishness of their beliefs.
Perhaps books that arose from practices condoned a few thousand years ago should be updated.

 

[SirRumpole]

and his individual contract demanded in my view that a clause about social media commentary were without controversy.

I don't believe employers should have a right to insert such clauses.

They infringe on an individual's private life which is of no relation to the job that the employee does.

 

[Smurf1976]

The inherent problem with religion is just that, it's religious and believers aren't usually willing to debate the validity of it.

 

[rederob]

I don't believe employers should have a right to insert such clauses.

They infringe on an individual's private life which is of no relation to the job that the employee does.

What you think or believe are not relevant.
Folau's activities/behaviours off the field can potentially adversely impact the "brand" and affect the employer's revenue stream. Reputational damage can cost millions.
An employer has a right to specific remedies where contracts identify what constitutes a breach, and such breaches occur.
It is entirely reasonable that employers are able to protect the viability of their businesses by limiting potential harm from their employees.

 

[SirRumpole]

It is entirely reasonable that employers are able to protect the viability of their businesses by limiting potential harm from their employees.

When their activities affect what they do on the job yes, otherwise no.

 

[Smurf1976]

I don't believe employers should have a right to insert such clauses.

They infringe on an individual's private life which is of no relation to the job that the employee does.

If the comments relate to the employer in some way then I think fair enough. Long before the internet came along it was always the case that criticising your employer publicly was one way to get sacked.

A few employers may have decided to turn a blind eye to some things due to management supporting the "free speech" principle but it's pretty standard as a concept.

If it has nothing to do with the employer's activities though well then I agree totally for any normal employee. If someone works for Coles and wants to hand out "how to vote Greens" cards on election day well then that ought to be fine assuming they're not standing on Coles' property, aren't wearing a Coles uniform, aren't on paid time, haven't in any way used company resources and so on. Just because most of Coles' customers don't agree shouldn't be of any relevance.

Where I can see the problem is that the nature of a professional sports player is somewhat different to an ordinary run of the mill employee in that everything they do will attract attention because of their employment. That being so, I can see the point about the employer wanting to present a consistent image and so on from a "business is business" perspective.

 

[SirRumpole]

If the comments relate to the employer in some way then I think fair enough. Long before the internet came along it was always the case that criticising your employer publicly was one way to get sacked.

He did not criticise his employer from what I can see.

It is entirely reasonable that employers are able to protect the viability of their businesses by limiting potential harm from their employees.

Would you accept any employer telling you that you couldn't post here ?

 

[rederob]

When their activities affect what they do on the job yes, otherwise no.

No, when their activities demonstrably affect their employer's revenue, then the employer can seek redress.
Similarly, private school students do not have free rein to discredit their schools or teachers or principals on social media outside school hours.
Employers have a right to protect their investment, and the foolish actions of employees that do it harm are not immune from the law.
Interesting byline is that one of the most litigious organisations in the world in terms of protecting its image is a certain Church.

 

[wayneL]

Compare - Kopernick(sp?)

Fundamental difference is that his behaviour was onfield and during employ, but, are there lessons there?

 

[rederob]

Would you accept any employer telling you that you couldn't post here ?

It's not where you post, it's what you post.
Nowadays I am very cautious about what I post.
Defamation in the cyberspace is real and actionable.

 

[Smurf1976]

No, when their activities demonstrably affect their employer's revenue, then the employer can seek redress.

A question is how far does it go?

For example Rugby Australia is sponsored by Qantas. As with all airlines Qantas uses a lot of jet fuel and is thus a fairly big polluter in terms of CO2.

Now what if one of these rugby players posts something online urging people to vote for a political party which advocates a carbon tax or other price on CO2 emissions?

Not directly bad for the employer but not good for a major sponsor's business if someone's going to tax them more.

So what's the response? Sack them?

Or the link is too indirect since it's only the sponsor and not the employer itself being harmed by the action being advocated?

My point there is about where to draw the line on this overall concept not about Qantas or climate change specifically, they're just an example. I picked politics given that religion has already been done....

 

[SirRumpole]

A question is how far does it go?

For example Rugby Australia is sponsored by Qantas. As with all airlines Qantas uses a lot of jet fuel and is thus a fairly big polluter in terms of CO2.

Now what if one of these rugby players posts something online urging people to vote for a political party which advocates a carbon tax or other price on CO2 emissions?

Not directly bad for the employer but not good for a major sponsor's business if someone's going to tax them more.

So what's the response? Sack them?

Or the link is too indirect since it's only the sponsor and not the employer itself being harmed by the action being advocated?

My point there is about where to draw the line on this overall concept not about Qantas or climate change specifically, they're just an example. I picked politics given that religion has already been done....

Yes indeed a good reply.

The area seems so broad that any employer could seemingly call a breach of contract for virtually any statement by an employee that potentially, possibly, directly or indirectly (note legal jargon ) causes a loss of revenue , or even loss of reputation for the employer.

Just found this under the Fair Work Act

Discrimination
Under the FW Act, it is unlawful for an employer to take adverse action against a person who is an employee, former employee or prospective employee because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

https://www.fairwork.gov.au/how-we-...ts/rights-and-obligations/protections-at-work