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

[satanoperca]

You may be spot on with your take on it Rob, IMO all that is in question is the severity of the punishment, relative to the indiscretion.
The precedent being set, is an extremely strong one.
They would have been much better served, just quietly dropping him from the team, then at a later date pay out his contract as his services are no longer required. Trying to make a public spectacle of the issue, is crazy, detrimental to the sport and showed a lack of judgement. IMO

How is the punishment meant to be ministered? You can play 1 out of 5 games but we will pay your for all 5?
There has been no precedent set until it has gone to court.

I hardly think that the RA was trying to make a public spectacle of the issue, as by your own words, it would be detrimental (have negative consequences, effect the bottom line).

With being a RA advocate, but reading their code of conduct, hardly think they made the decision without judgement.

After all the discussion on this thread, I have come to the conclusion, those with the largest voices, are those that have always been employees and have never been an employer and who risked their capital to succeed.

I find this funny as it is a share/investment forum, so I ask people this, if you had invested in the RA, would you have approved in this guys actions if it meant your ROI was diminished?

 

[Smurf1976]

This is a case where a contracted employee was warned about the type of behaviour that was not not appropriate BEFORE entering into into a fresh 4 year term

That is certainly true, there’s no denying that, but the point I and others are raising is whether or not such a restriction is reasonable in the first place whether or not it is adhered to?

If I own a business then should the law allow me to prohibit employees from publicly expressing any view which, for random example:

*Condones or acknowledges the validity of any religion

*Supports any union, it’s activities, policies or associates

*Opposes any form of natural resource development anywhere in Australia

*Supports any political party or candidate who proposes to increase business taxation

*Is a comment on any matter about which significant community or political debate is occurring or may occur in the future

*Or which is otherwise deemed unacceptable

Now would that be reasonable?

In my view firmly “no” but in that case it’s then a question of what is reasonable and what is not? Where is the line drawn?

Whether or not it involves or affects the business would seem the most reasonable criteria in my opinion.

If I run a hypothetical restaurant in Adelaide and you want to oppose the Adani coal mine in Queensland then it seems very unreasonable that I’d be able to prevent you from doing so.

 

[sptrawler]

I find this funny as it is a share/investment forum, so I ask people this, if you had invested in the RA, would you have approved in this guys actions if it meant your ROI was diminished?

I have never watched rugby, nor Folau, but if I had money invested in R.A, i would definitely be asking management why they handled it the way they did.
If he is as good a player as has been said, I would be asking why he couldn't have been convinced to tone it down.
If his comments hadn't caused any player backlash, why not fine him for the incident and have him still play.
If players had refused to play with him due to his beliefs, then he would have to be dropped from the team.
To publicly sack him, for no other reason than the posting, I would be saying "you did what".

I'll put it another way, what if he was the lead scientist for CSL, the best they have and they sacked him for that post?
I'm sure the CSL shareholders, would be wondering WTF.

 

[moXJO]

How is the punishment meant to be ministered? You can play 1 out of 5 games but we will pay your for all 5?
There has been no precedent set until it has gone to court.

I hardly think that the RA was trying to make a public spectacle of the issue, as by your own words, it would be detrimental (have negative consequences, effect the bottom line).

With being a RA advocate, but reading their code of conduct, hardly think they made the decision without judgement.

After all the discussion on this thread, I have come to the conclusion, those with the largest voices, are those that have always been employees and have never been an employer and who risked their capital to succeed.

I find this funny as it is a share/investment forum, so I ask people this, if you had invested in the RA, would you have approved in this guys actions if it meant your ROI was diminished?

I was an employer. And you follow the law with your contracts.

This case can go either way.

 

[Smurf1976]

I was an employer. And you follow the law with your contracts.

There’s really two issues there:

1. Was the contract legal?

2. Regardless of whether or not the contract was legal, should it have been legal?

 

[moXJO]

There’s really two issues there:

1. Was the contract legal?

2. Regardless of whether or not the contract was legal, should it have been legal?

For now we need the first question answered imo. After that we need a broader discussion on rights.

 

[rederob]

That is certainly true, there’s no denying that, but the point I and others are raising is whether or not such a restriction is reasonable in the first place whether or not it is adhered to?

If I own a business then should the law allow me to prohibit employees from publicly expressing any view which, for random example:

*Condones or acknowledges the validity of any religion

*Supports any union, it’s activities, policies or associates

*Opposes any form of natural resource development anywhere in Australia

*Supports any political party or candidate who proposes to increase business taxation

*Is a comment on any matter about which significant community or political debate is occurring or may occur in the future

*Or which is otherwise deemed unacceptable

Now would that be reasonable?

In my view firmly “no” but in that case it’s then a question of what is reasonable and what is not? Where is the line drawn?

Whether or not it involves or affects the business would seem the most reasonable criteria in my opinion.

If I run a hypothetical restaurant in Adelaide and you want to oppose the Adani coal mine in Queensland then it seems very unreasonable that I’d be able to prevent you from doing so.

The action of RA was lawful and matters need to be judged on the particular circumstances rather than irrelevant hypotheticals.
Read my link to RA’s comments and it’s not hard to figure it out.

 

[satanoperca]

Let me guess, the RA made some knee jerk reaction based on nothing but politic opinion after signing a person to a multi million dollar contract, whom had in the past pissed off management.

They reacted without legal consultation or consideration to the ramifications their actions might present.

HARDLY SO.

They asked and contracted with an individual to do 2 things :
1. Play a sport to the best of their abilities
2. Not be a f--kwhit and cause damage to their brand and business.

Well, said person was capable of meeting the first requirement, however the second on he failed on.

This has nothing to do with freedom of speech, religion, the lefts or the rights

It has to do with, don't be a f--kwhit if you signed a contract that you agreed you wouldn't be.

The only thing this guy did wrong, was when he said, those that are XXXXX plus being a f--kwhit will go to hell, he didn't realise that he will need to repent for being a f---kwhit, or hell is where he will end.

How hard is this for everyone to comprehend.

 

[sptrawler]

The action of RA was lawful and matters need to be judged on the particular circumstances rather than irrelevant hypotheticals.
Read my link to RA’s comments and it’s not hard to figure it out.

From what you said, he had been previously warned for exactly the same thing, I wasn't aware of that, but as has been said whether it is still sufficient grounds for sacking is what will be tested. IMO

 

[Smurf1976]

The action of RA was lawful and matters need to be judged on the particular circumstances rather than irrelevant hypotheticals.

The courts will decide whether or not the actions of RA were legal or not.

That something is legal does not however preclude someone from objecting to it on whatever grounds.

For a current example, well the Adani coal mine in Queensland is legal and should we end up in a war with Iran that will most definitely be an action of government itself.

Should employers in unrelated industries be able to prohibit their employees from publicly opposing the mine and, if it eventuates, war?

That’s where the free speech arguments come in.

All that said, well personally if I were in his position then I’d keep my mouth firmly shut.

That is of course placing personal profit ahead of moral conscience and has many relevant examples in the modern world.

Should a vegan invest in the meat industry if it’s the best way they can make a profit?

Should you or I be willing to invest in coal, uranium, tobacco etc if that’s where the money is?

What about prostitution? A legal brothel in the right location would be fairly profitable I’d expect.

What’s legal and what someone finds morally acceptable are often not the same and whilst I agree that most will put profits ahead of principle not everyone agrees with that approach.

 

[moXJO]

How hard is this for everyone to comprehend.

You can't sign away your rights as per law. Its that simple. Go write a prenuptial all in your favor and see how it holds up in court. Just because it's in a contract doesn't mean it will hold up in court.

The issue is did RA break 772. Thats what they are going to court for. RA can say whatever they want, they don't make the laws. They have to prove it wasn't infringing on his religious rights as per law.

It feels like a bloody endless circle.

Rob is arguing RA's most likely defence.
I'm arguing Folau's.
Either could hold up.

 

[moXJO]

The action of RA was lawful

Thats currently not true. They have possibly broken workplace laws.

 

[Dark Knight 2.0]

The action of RA was lawful

Come on Rob, not even Lawyers are brave enough to declare that, that's why it's such a test case.
Statute Law overrides Common Law. If the Fair Work Act gives Folau protection it's game over.

Although I suspect it's more likely than not RA will win.

 

[rederob]

The courts will decide whether or not the actions of RA were legal or not.

Folau had the opportunity to take his termination through a separate legal pathway but, instead, chose the FWA to make a claim that RA used his religion as a basis for termination.
I posted very early in the thread about the difference between illegal and unlawful - too many people confuse the ideas. RA had a legal basis for its actions, but Folau thinks his right to freedom of expression is more important. That is what will be challenged and, should the matter not be settled beforehand, provide guidance on similar cases in future.
Should the matter proceed, there is no guarantee that the courts will determine on freedom of expression per se, as it is possible they will confine their decision to the nature of actions that allow employers to make reasonable assessments of employee acts that may lead to a breach of contract. Courts are very good at splitting hairs when they see fit.

Thats currently not true. They have possibly broken workplace laws.

I get why you say that, but the corollary is that when you are booked for speeding and you take it to court, until the court decides you can claim you have not broken the law.

 

[rederob]

They have to prove it wasn't infringing on his religious rights as per law.

And RA do it by showing that any contracted player - eg those with or without religion - who posted similar material would face face a similar outcome. I know we are going in circles here, but the links of the chain of evidence cannot be broken, else the case is flawed.

 

[SirRumpole]

but Folau thinks his right to freedom of expression is more important.

It is.

 

[sptrawler]

And RA do it by showing that any contracted player - eg those with or without religion - who posted similar material would face face a similar outcome.

If he was a popular player, you may have found the rest of the team would have done exactly that, then it would be an interesting situation for R.A

 

[moXJO]

And RA do it by showing that any contracted player - eg those with or without religion - who posted similar material would face face a similar outcome. I know we are going in circles here, but the links of the chain of evidence cannot be broken, else the case is flawed.

In the same instance, Folau has remained consistent in his faith. If he wasn't religious he wouldn't have a case.

I completely understand the position you are putting forward. On this one I would rather RA lose.

 

[SirRumpole]

And RA do it by showing that any contracted player - eg those with or without religion - who posted similar material would face face a similar outcome. I know we are going in circles here, but the links of the chain of evidence cannot be broken, else the case is flawed.

Folau should not get special status because of religion.

The same safeguards against unfair dismissal should apply to people wanting to state a political opinion, social opinion or any other sort of opinion as long as doing so does not interfere with them doing their job.

There are wider implications in this case.

If RA win then any employer would be able to write conditions into a contract denying people's rights to free speech on any subject that the employer deems is bad for business. That's too much power to the employer.

 

[rederob]

Folau should not get special status because of religion.

That is the entirety of his claim. Outside of that he has no scope press forward.