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Israel Folau – Freedom of Speech/Religion or simple Breach of Contract?

With his recent launching of legal action against Rugby Australia (RA) following the termination of his contract, the Israel Folau saga rages on, and public opinion remains as divided as ever.

Very broadly sketched, and I will assume that everyone is familiar with the facts, RA ’s stance is premised on a simple (albeit high level) breach of contract. They argue that his behaviour falls foul of the general and underlying idea of their Code of Conduct and of specific clauses including those relating to the use of social media, public comment and how people (regardless of gender, gender identity, sexual orientation, ethnicity etc) should be treated. His latest breach is aggravated by the fact that he committed a similar offence a year ago, was warned, and allegedly agreed not to disparage anyone over their sexual orientation again.

The arguments in support of Folau (his own and others) are more complex. Firstly, that he has been discriminated against on the grounds of his religion and that of the limitation of his right to freely practise his religion. He claims that RA have unlawfully dismissed him in contravention of Australia’s Fair Work Act which prohibits dismissals on the grounds of religion. RA will surely disagree. They will argue that their players (including Folau) are, and have always been, allowed to practise their religions freely and without prejudice. This is in fact protected by their own Member Protection Policy. That, however, does not extend to giving players the right (irrespective of their particular religious convictions) to disparage others and breach the Code of Conduct. After all, these are the terms of the initial contract which the player agrees to. If a player feels that those terms will infringe on his religious beliefs (for example if his religion dictates that he must spread the word and that word happens to be offensive or impairs the dignity of others) he is free to choose not to sign the contract. In a similar vein, this has recently been dealt with by our own Supreme Court of Appeal where it found that people living on residential estates agree to and are bound by the relevant rules, provided that the rules are not unlawful or against the public interest. For example, if the rules state that a homeowner is only permitted two dogs, they cannot move in and then successfully claim that it is their right to own as many dogs as they want to, or that they have the right to build in whatever style they choose when there are clear guidelines and rules regulating this. They waive those rights by signing the relevant contracts.

Similar arguments have been raised in respect of Folau’s freedom of speech and its limitation. Again, a red herring, RA will argue. This issue simply boils down to the terms of the contract. Folau has the right to say whatever he wants within the wide parameters of what is legally permitted. Similarly, RA has the right to set the terms of and choose with whom they contract. They are not obliged to provide the players with a platform to exercise their right to freedom of speech nor are they obliged to employ or to contract with someone who is not prepared to adhere to or who breaches their Code.

A legitimate question, of course, is whether the breach is serious (or high level) enough to warrant the termination.

Whatever the case, failing settlement, this matter will be decided by the court in February next year and it will be most interesting to see the outcome.

I suspect though, the reality is, if you publicly classify an entire group of people as evil and hell-bound based on their sexual orientation (or gender, ethnicity etc.), in most cases, you run the very real risk of losing your job.

Contributor:  Michael J Browning (Managing Director)

E-mail:  mikeb@tmj.co.za

Tel:  033 341 9100