Human rights are statutory rights, they are universal rights not based on a pay scale
Israel Folau is not the first person to lose his job over a social media post, and he is unlikely to be the last. AMY DALE reports on how the Wallabies star dragged social media into the employment law spotlight.
As a footballer, Israel Folau has built a career out of clean breaks; finding a gap and storming through it to great success.
Off the field, his dispute with Rugby Australia has exposed the glaring legal chasm between our right to tweet, like, and share whatever we want on social media and the right of our employer to sack us for sharing personal views on a public platform.
Since his termination following an Instagram post in April condemning gay people (as well as drunks and those who have sex outside marriage) to hell, public opinion has been split into two teams.
In one corner, this case has been declared a troubling infringement on a man’s right to express his religious views; in the other, the response from Rugby Australia to tear up Folau’s $4 million contract was applauded as the appropriate response to hateful and homophobic comments.
Folau told the Fair Work Commission his sacking was unlawful due to religious discrimination that will cost him close to $5 million in lost salary. The case looks certain to move to the Federal Court, given a settlement following the conciliation hearing between the 30 year old and Rugby Australia appears unlikely.
“As soon as I saw the calls for Israel Folau to be sacked, I was convinced that a full-blown culture war would erupt,” Josh Bornstein, the National Head of Employment Law at Maurice Blackburn, tells LSJ.
“We are going to see many, many breaches so long as public relations departments determine who gets to keep their job.”
Bornstein likens the current approach to these cases as “the politics of a colosseum”.
“Social media is like the Wild West; it is lawless. And we have employers listening for the loudest chorus, and whoever’s voice makes the loudest call determines who is sacked,” he says.
The nasty divide in public opinion comes at a time when Parliament is set to develop and debate a religious discrimination bill.
Several legal experts fear this latest instalment of a culture war, and its concurrence with the bill, is missing the broader picture – a vast and unfolding landscape blurred by the influence of social media.
There is no doubt social media has immeasurably altered the lines between our private and professional lives – while LinkedIn is clearly an employee-based platform, many people attract followers to their Instagram and Twitter feeds based on their job and its associated profile.
It is still common on Twitter to see a user declare on their profile that “these views are mine and do not reflect those of my employer” even though the disclaimer carries no legal weight. Well before the Folau case, others had lost their job for comments made from their account, some following widespread condemnation from the very same commentators who now furiously believe Folau is being persecuted for his faith.
“That is why many employees are now asking, ‘Why are you trying to regulate my private life?’” says Luke Beck, a Monash University Law Associate
“What we are missing in this debate is the opportunity to consider whether or not it is really necessary to regulate the activities of employees outside of hours, and to what extent?
“However, it appears that the Government is not looking at the issue of creating those guiding principles.”
A question of faith
The religious discrimination bill will shortly be introduced to Parliament, with Federal Attorney General Christian Porter promising considerable protections for anyone who is the subject of “indirect” unfair treatment.
Porter has indicated that the clause relating to indirect religious discrimination will be mirrored on similar provisions in the Sex Discrimination Act.
“This would provide an overarching rule that places limitations on what an employer could do by way of general rules that affected all of their workplace,” Porter told The Guardian last month.
Prime Minister Scott Morrison has also been quoted telling his party room, “I do not want religion to be an issue that divides Australians. I want to work through it in a way that enhances unity.”
More complaints were made to the Australian Human Rights Commission regarding religious discrimination 10 years ago than in the past two years, despite some commentary suggesting that since the 2017 marriage equality postal vote, professing one’s faith carries grave risk.
All Australian states and territories except NSW and South Australia already have laws prohibiting discrimination on the basis of religion. If Folau’s case was in Victoria he could sue under the state’s equal opportunity law rather than the Fair Work Act.
HR and the dark arts
What many legal experts agree is that a live and serious concern is the almost unanimous use of social media outlets by employees and to what extent their bosses have a right to manage how they use it.
Bornstein says the case represents a troubling continuum of “the dark arts of human resources”, whereby employers are able to “control and regulate their employees based on a moral assessment”.
“Human rights are statutory rights, they are universal rights not based on a pay scale,” Bornstein says.
“[Some of the comments in this debate] have drawn on Folau’s salary, but in doing that are they suggesting that he does not deserve human rights because he has a high pay scale?”
Bornstein believes the Folau case is an example of an overreaching code of conduct, and there is a need to “modify the power imbalance that has come about for employees as the price to pay for getting a job”.
“Now we have a situation where employers are arbitrarily and capriciously enforcing these far-reaching and broad policies,” he says.
He also points out that this monitoring of social media accounts begins at the recruitment phase.
“There was one case where human resources contacted an applicant to inquire about references and [the human resources person] did not put the phone down properly … [The applicant] overheard them saying she had a brilliant employment record and her qualifications were good, but that she had racy Facebook pictures,” Bornstein says.
He believes social media accounts remain the private domain of the user, unless it is a declared official page being managed by the spokesperson for an organisation.
His sentiment is shared by Beck, who urges private sector employers “to think very carefully about whether or not it is genuinely appropriate to seek to regulate private conduct”.
The case of Israel Folau is a missed opportunity to have a discussion about a proper code of conduct regarding how employers can regulate the outside activity of their employees.
Profile and influence
Others question – particularly when considering high-profile jobs like professional athlete or television presenter – when someone becomes a representative for their organisation and is therefore required to fall into line with the views of their employer or a sponsor.
Joellen Riley, former Dean of the University of Sydney Law School and a labour law expert, believes “the Israel Folau case is essentially a case about the extent to which an employer can be required to continue to employ a person, and pay them a salary, when the employee has engaged in conduct which adversely affects [their] business interests”.
“The thing people seem to be forgetting about the Folau case is that a number of sponsors of Rugby Australia and media sporting commentators purporting to speak in the voice of fans were expressing concern to them,” Riley tells LSJ.
“An employer who is obliged to continue to employ a person whose religious or, by the same token, political views have attracted such public outrage is in an extremely difficult situation.”
While some believe the upcoming bill will be a missed opportunity to provide proper legal guidance and a clear framework, Riley thinks “these matters are best resolved on a case-by-case basis”.
“It would be very difficult to draft legislation dealing with what employees can and cannot put on social media, given the great diversity of roles,” she says.
“If my cleaner has rabid views expressed on social media, it doesn’t affect my business in the same way as if my marketing manager or brand ambassador expresses those views.”
Bornstein believes many employers will continue to overstep the mark when it comes to codes of conduct.
“Most codes of conduct have incredibly broad ‘behave appropriately at all times’ clauses and no one is able to live up to that obligation all the time, so you are going to see many breaches,” Bornstein says.
Beck pointed to another recent case, that of former SBS reporter Scott McIntyre who settled with the station in 2016 after he was fired for refusing to take down a series of Twitter posts criticising ANZAC Day, as an example of an overreaching code of conduct.
One possible solution is to encourage both a personal and professional account, but even this is not foolproof against consequence for comments that appear to contravene the policies or principles of a workplace.
The High Court is currently considering the matter of Michaela Banerji, the former federal public servant who was sacked after she was revealed to be the author of an anonymous Twitter account named La Legale, which criticised government policy.
She was terminated from her role at the Department of Immigration and Border Protection after an investigation found she had not upheld the values of the public service, which has extensive social media policies that stipulate political neutrality.
“The problem arises in the case of people who only have a significant following because of their employment status,” Riley says.
“Scott McIntyre would have had his following as an SBS journalist. Likewise, Israel Folau’s following is estimated at a third of a million followers. Would he have had such a following if he was just a Pentecostal preacher?
“I doubt that this furore would have happened if he had two social media accounts and kept his proselytising posts for his private, church-based followers.”
Bornstein believes the case could progress as far as the High Court and could permanently redefine the relationship between employers and employees in Australia.
“Hypocrisy has ruled supreme in this debate,” Bornstein says, referring to those who called for the sacking of McIntyre and Muslim woman Yassmin Abdel-Magied for controversial political comments, yet have thrown their support behind Folau.
A missed opportunity
The Australian Human Rights Commission is currently developing guidance to assist workplaces to navigate an employee’s right to freedom of conscience, thought and religion and balance it with the need to protect individuals from experiencing discrimination on other grounds.
“Employers bear pretty onerous work health and safety obligations to deal with bullying and harassment,” Riley says.
“How can an employer effectively manage those responsibilities if they cannot ask employees not to engage in disrespectful communications, because the employee claims their disrespect is justified by some holy book?”
Beck maintains “this issue is not religious”.
“The big question is to what extent employers regulate the social media accounts of their employees. [What is being posted] may not be religiously motivated, but that is the debate we have had in light of the Folau case, at a time when Parliament is considering the religious discrimination bill as an act of symbolism,” he says.
“The case of Israel Folau is a missed opportunity to have a discussion about a proper code of conduct regarding how employers can regulate the outside activity of their employees.”