Earlier this month, Rugby Australia terminated the employment contract of one of its highest profile stars in response to posts he made on social media that “hell awaits” homosexuals and urging them to repent their sins.  Rugby Australia considered that Israel Folau’s conduct was a high level breach of the Professional Code of Conduct.  He has now contested this decision and a hearing is scheduled for 4 May.

While this story is about the employment contract of a rugby union player in Australia, it highlights a number of issues employers face when considering whether to take disciplinary action, including terminating the contract of employment, when dealing with an employee’s personal views expressed on social media.

What does the Code say?

Rugby Australia’s Code of Conduct contains the following provisions which apply to its players:

 “Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby”.

“Do not otherwise act in a way that may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit”

The Code of Conduct makes clear that any breach can become a disciplinary matter and that the Code of Conduct Committee can impose “such other sanction as may be appropriate” in the circumstances.

Was termination appropriate?

Folau’s appeal will be heard by a three-person committee on 4 May. The committee will likely consider how to balance the terms of the Code of Conduct and Folau’s religious beliefs. If the termination is upheld as an appropriate measure, it is likely Folau will seek recourse in court for a decision on whether the termination constituted a breach of his contract of employment and discriminated against him on grounds of his religious beliefs.

A breach of the Code could, depending on the terms of the employment, entitle Rugby Australia to take disciplinary action, including terminating the contract. In addition, Folau had also received a formal warning from Rugby Australia for controversial social media posts in 2018. It is conceivable that the committee could consider that he failed to obey his employer’s instructions not to make controversial social media posts in the future.

Unlike in Ireland where the Employment Equality Acts specifically prohibit discrimination on the grounds of religious belief, there is no statutory protection against discrimination on grounds of religious belief in some territories in Australia, (including in New South Wales where Folau plays his club rugby for the NSW Waratahs). Depending on which territory governs the law of his contract, Folau may have no statutory protection.

We’ll be keeping a close eye on how this story develops.