Rugby Australia’s inclusion policy vs. Folau’s freedom of speech

Earlier this month, high profile rugby star Israel Folau posted some highly offensive comments on Instagram stating that gay people were headed to “HELL… Unless they repent of their sins and turn to God”. It’s brought up the traditional questions about the right to free speech, vs. the rights of inclusion, as well as our expectations of sports stars who we laud as “role models in the community” until their off-field behaviour gets them into strife, or they go rogue with unsavoury opinions on social media.

Of interest to me has been the hypocrisy of spouting a commitment to LGBTQI inclusion but being unwilling to back it. Rugby Australia was rightly quick to distance itself from Folau the day after his comments were published on Instagram, stating that “Folau’s personal beliefs do not reflect the views of Rugby Australia. Rugby supports all forms of inclusion, whether its sexuality, race, or gender, which is set out in our Inclusion Policy (2014).” Some suggested such a response was merely to placate its largest corporate sponsor Qantas.

From that point on there were two clear paths that Rugby Australia could have been taken. Option A was to go down the freedom of speech avenue and let Folau deal with the consequences. Continue to distance themselves, let Folau cop any heat for his homophobia and leave it to more progressive Christians to challenge his views publicly. Or Option B – take a stance, and assess whether Folau’s statement was in breach of its Inclusion Policy, it’s social media policy, and any employment contract clauses. If Folau’s statements were in breach, then deal out the consequences. In doing so, show that its commitment to fostering inclusion and diversity in its organisation and the wider rugby community is more important than upsetting one of its stars. Follow the path it took last year when it pledged its support for marriage equality and the LGBTQI community.

If solely judged by the Court of Public Opinion, Rugby Australia would have probably come out fairly unscathed had they taken Option A. Media pundits, sporting commentators and fans appear determined to protect what they believe is our fundamental human right to free speech, arguing that Folau’s right to express his religious belief shouldn’t have been undermined by Rugby Australia’s concerns about upsetting sponsors. Whilst initially expressing their disappointment, I think it’d be unlikely that Qantas would have made any further public statements on the matter, given Alan Jones’ questioning of why the airline maintained a partnership with Emirates Airlines, which is based in the UAE, where homosexuality is punishable by imprisonment.

Instead Rugby Australia managed to get itself into quite a pickle, in its attempt to appease everyone. After meeting with Folau to discuss social media policy, CEO Raelene Castle emerged stating “I think Israel has acknowledged that maybe he could have put a positive spin on that same message and done it in a more respectful way”, and “Rugby Australia has got a policy of inclusion and using social media with respect”. Castle suggested it was just the first conversation, and more conversations with Folau would be had. She was however also quick to alleviate fears that Folau might be leaving rugby, stating “we would really like him to stay in rugby, that’s hugely important to us”. The overall impression was that Folau had been given a slap on the wrist and he’ll think twice next time, but that Rugby Australia was determined to hold onto its golden boy.

Yeah nah, Folau said. Rather than retracting his comments, he doubled down publishing an article quoting Bible passages to justify his remarks. He made it clear he would not easily give up his position and would walk away from his contract if necessary. He argued Castle mis-represented his position in her comments to the media and did so to appease other people.

Castle then appeared to back down and call an end to the matter, conceding there would be no sanctions: “In his article, Israel clearly articulated his religious beliefs and why his faith is important to him and has provided context behind his social media comment. In his own words, Israel said that he did not intend to upset people intentionally or bring hurt to the game. We accept Israel’s position.”

Rugby Australia has attempted to placate everyone, but in doing so has managed to leave both sides of the divide pissed off. Those that believe Folau has a right to his opinions and to speak opening about his faith feel he shouldn’t have had to explain his actions to Rugby bosses. Some felt the game was letting down a decent man who had a right to express his religious beliefs without being gagged by his employer based on commercial considerations.

And on the other side it’s upset those who believe Rugby Australia’s response only compounds the hurtful message Folau made and leaves LGBTQI youngsters feeling unwelcome by a sporting organisation where such intolerance continues to exist. Some questioned whether Rugby Australia’s inclusion policy was worth the paper its written on.

Many questions remain unanswered – What would Rugby Australia do next time a player says something so offensive publicly? Is it ok if its faith-based? Is it ok to post hurtful comments as long as the player claims there was no intent to harm? Is it only ok if it’s said by a top player who does not seem particularly concerned about his future with rugby? Is it an inclusion policy with exclusion clauses?

If you’re going to have an inclusion policy or a code of conduct, be prepared to walk the talk. Have a good hard think when implementing these policies about the type of behaviour which would breach the policy, and what repercussions would follow. Rugby Australia proclaims its support for Pride in Sport initiatives and the creation of “inclusive spaces though the reduction of homophobia, stigma and discrimination.” It seems rather hypocritical to then to fail to reprimand one of its most prominent players when they seek to demonise a vulnerable minority group.

If Rugby Australia took action to sanction Folau, many would be outraged claiming Folau’s right to freedom of speech had been infringed upon and his employer has no right to censor him. However, freedom of speech is significantly qualified by exceptions. One of these exceptions can include a contract of employment which limits our freedom of speech to ensure we abide by the ethics, values and morals of our employers. Back in 2015 when SBS presenter Scott McIntyre found himself out of a job for breaching SBS’s Code of Conduct and Social Media policy after tweeting some offensive remarks about the ANZACs, Human Rights Commissioner Tim Wilson said “Decrying McIntyre’s dismissal as a free speech violation and censorship is absurd – McIntyre was free to tweet his bile before he worked for SBS, while he worked for SBS and now that he no longer works for SBS. SBS simply decided it didn’t want to be associated with him. No one is guaranteed a job. Employers are not compelled to put up with behaviour that harms their public reputation.”

Enforcing code of conducts, or policies around inclusion and diversity is a tricky business. They can be ambiguous and open to interpretation, if not well defined and communicated. Particularly when they attempt to capture behaviour outside of work. Rugby Australia’s Inclusion Policy attempts to do just though stating “There is no place for homophobia or any form of discrimination in our game and our actions and words both on and off the field must reflect this”. Rugby Australia has avoided engaging with their Inclusion Policy this time in fear of losing their code-hopping superstar, but it may make it even more tricky for them to enforce next time future off-field behaviour comes into conflict with the values that the organisation purports to support.

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May 16

Anti-social media: 4 ways to manage social media and cyber-bullying in the workplace

Whilst technology and social media have unquestionably provided many benefits to the modern workplace and opportunities for businesses to reach a wider audience, they have also presented dilemmas for HR managers and business owners when dealing with interactions between employees. With the increased use of the internet and social media, and the fact that almost everyone in the workplace now owns a smart phone and can access Facebook, Instagram and similar social media platforms 24/7, problems that used to be left at work when the day ended and everyone went home now follow people home after work hours, which can present huge challenges for employees and managers alike.

With 66% of the Australian population now on Facebook, 20% on Instagram and 17% on Snapchat[i], social media has become a huge part of many people’s lives. The impact that social media bullying has on children and teenagers has been well publicised, with many schools now introducing programs to educate students about cyber safety. However, the impact that social media and in particular, social media bullying has on workplaces has received far less attention.

In the last few years, social media has played a much larger role in bullying claims, unfair dismissal applications and workers compensation claims, with it now not being unusual for screenshots of social media conversations, statuses and comments to make their way to tribunals and Courts in support of employee’s claims.

Whilst many businesses are now taking steps to address bullying and harassment in the workplace, businesses should also be putting steps in place to address employee’s use of social media in and away from the workplace and implementing processes for employees to report anti social behaviour that they may be subjected to from other employees when using social media.

4 steps for employers to manage social media bullying

Social media and cyber bullying is often unfamiliar territory for many employers, however, there are steps that can be taken to minimise legal risk and ensure that the workplace is a safe environment for all employees.

Implement workplace policies

The best action that employers can take is to develop bullying, cyber bullying and social media policies. A policy relating to bullying should include a definition and examples of both bullying and cyber bullying as well as what behaviour is appropriate and acceptable and what behaviour is not. The bullying and cyber bullying policy should make clear the consequences for failing to comply with it, such as warnings, suspension or termination.

Employers should emphasise that the conduct does not need to occur specifically at work. The Fair Work Commission has recognised that technology and social media has blurred the line between what is “at work” and what is not.

In Bowker & Others v DP World Melbourne Limited [2014] FWCFB 9227, the Commission held that the traditional meaning of “at work” may not necessarily apply to a cyber bully as comments made on social media (in this case, Facebook) only need to be accessed whilst the employee is “at work” to enable the employee to make an application for a stop bullying order under the Fair Work Act. This means that as long as the comments remain on social media and the employee is able to access those comments whilst they are at work, the employee will have the ability to make a bullying complaint to the Commission.

For this reason, workplace policies that are implemented must adequately address the fact that they will continue to apply even outside working hours and that employee’s will be expected to comply with the policy, otherwise disciplinary action may be taken against them.

When it comes to social media and the workplace, it is not just words that may be considered cyber bullying, but also a person’s actions. In Rachael Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, it was held that “unfriending” a colleague on Facebook could be considered to form part of bullying conduct. However, “unfriending” on its own is unlikely to constitute bullying, as in this case, it was the combination of other conduct that led to the Commission finding that the employee had been bullied.

Develop a reporting and investigation process

Each workplace should develop a thorough reporting process and investigation process which is usually set out in a grievance policy. Because of the nature of cyber bullying, and the potential for it to occur outside of working hours, often the only way that employers become aware of any issues is if the employee tells them.

It is important to ensure that employees feel comfortable reporting issues to their supervisors and/or managers and that they are encouraged to do so. This means that supervisors and managers must deal with a complaint appropriately by listening, asking questions and showing empathy.

Having a policy that allows complaints to be made is vital to avoiding a bullying application being made by an employee. The Fair Work Commission expects that prior to making an application, the employee has exhausted avenues available to them to have the complaint remedied by their employer. If a business does not have a grievance policy in place, this can open the door to an employee making an application directly to the Commission without first providing the business with the opportunity to address the issue directly.

Train managers and staff

Employers have a legal obligation to provide a safe workplace for their employees. This includes training and educating their employees regarding bullying and cyber bullying and what is and isn’t acceptable behaviour in the workplace.

If a business fails to train its staff on what is and isn’t acceptable, and an employee subsequently bullies another staff member, a business can be held liable for the employee’s actions. For this reason, it is vital that all staff are given training on appropriate behaviour in the workplace and how to deal with bullying and cyber bullying in the workplace. This will also assist in countering any claim that the employer is vicariously liable for an employee’s actions as it demonstrates that the behaviour was not condoned by the business and the business took reasonable steps to train staff about expected behaviour.

Don’t ignore the issue

If a business does become aware that there is an issue between staff members or that comments or posts have been made on social media that are inappropriate, the business has an obligation to take immediate steps to address the issue.

Despite there being a tendency to want to ignore issues that crop up on social media given they can be tricky to handle, usually apply to out of work conduct and can sometimes involve petty disputes, if a business is on notice that there is something wrong and does nothing about it, there is a very strong possibility that the employer could be liable for any damage that is caused to the bullied employee’s health, if a claim were to be brought by them.

[i] https://www.socialmedianews.com.au/social-media-statistics-australia-january-2017/

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May 4

Out of work conduct: when is dismissal justified?

We see it all the time in professional sports: athletes losing their contracts over poor decisions made away from the game. Take for example, Todd Carney who was spectacularly sacked from the Cronulla Sharks, without procedural fairness, following the ‘bubbler’ incident, or Nick D’Arcy who was kicked off the Australian swimming team bound for the Beijing Olympics after he punched former swimmer, Simon Cowley, in the face, breaking his jaw. The reason that is almost always given by the clubs and sporting bodies to justify the athlete’s termination is that they ‘brought the sport into disrepute’ or that they breached the team’s code of conduct.

Due to the tremendous amount of attention that is received when a professional athlete puts a foot wrong and then the subsequent disciplinary action that inevitably follows, it is not unusual for employers to similarly think that they are entitled to take action against an employee when they exhibit out of work behaviour that they do not agree with. Whilst this is normally behaviour which would be considered criminal and which the police are involved in, it also increasingly includes posts on social media which could be damaging to a colleague or the business as a whole. So then, when can an employer dismiss an employee for conduct that occurred away from work?

The key for employers to remember is that they have very little control over how an employee chooses to spend their time away from work. They cannot dictate what an employee can or cannot do unless there is a sufficient connection to the person’s work and likewise, it is very difficult for an employer to terminate an employee’s employment (which will subsequently not be found by the Fair Work Commission to be unfair) for out of work conduct.

In Deeth v Milly Hill Pty Ltd [2015] FWC 6422, an employer was found to have unfairly dismissed an apprentice butcher after he had been arrested for being an accessory after the fact to murder. The employer produced evidence that customers would boycott the small butchery and other employees would resign if it continued to employ the apprentice. However, the Fair Work Commission found that the employer had a ‘knee jerk’ reaction to the arrest and should have carried out a reasonable investigation prior to terminating.

This case makes it clear that employers must be extremely careful when terminating an employee for out of work conduct. Further, employers must still ensure that a fair process is carried out, no matter how serious the alleged out of work conduct is. Just one of the factors that the Fair Work Commission must have regard to when determining an unfair dismissal is whether the employer had a valid reason for dismissal. The other factors which are considered are all relevant to whether a procedurally fair process was implemented and whether the employee was given the opportunity to respond to the allegations prior to termination.

However, there will be times when an employer can consider termination (following, of course, a procedurally fair process), including when the behaviour:

Damages the reputation or commercial interests of the employer (for example, by very specifically referring to the company on social media in a damaging or disparaging way);
Is incompatible with the employee’s duties that they perform for the employer (for example, if a truck driver had their licence suspended or cancelled for high range drink driving);
Occurs at an extension of a work related event or occurs in the presence of colleagues (for example, if a person becomes intoxicated at a work event and after it has ended, an employee sexually harasses a colleague).

In Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258, Fair Work Australia (as it was then called) found that an employee who had been terminated after being charged with driving his personal vehicle whilst three times over the legal blood alcohol limit, was not unfair. Importantly in this case, the employer, who was a manufacturer of alcohol, had a policy that stated that if an employee was charged with drink driving, their employment would be automatically terminated because of the negative impact it would have on the business, which was located in a small town. In this case, the employee was aware of the impact a drink driving charge would have. Further, the employer took time to make the decision and allowed the employee to respond to the allegations which were made against him, ensuring that the process was fair.

What is important for a business to ensure when it comes up against an employee who has acted poorly outside of work is to consider the impact that it actually has on the business. Whilst the employer might find the conduct to be morally or ethically wrong, this will not be enough to terminate the employee’s employment. The conduct must be sufficiently related to the employee’s job so as to impact the business’ reputation and/or render the employee incapable of carrying out their duties.

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January 14

Customer Service – Exactly How much should employees have to take?

Emily Capewell became famous just before Christmas for a Facebook spat on the Sydney Morning Herald’s page directed at her Jetstar customers. A computer glitch had created numerous delays, and numerous complaints – prompting Ms Capewell to describe them as a ‘bunch of whingers’. The Sydney Morning Herald immediately jumped on it as yet another example of an employee losing their cool in the face of customer adversity. We are familiar with this scenario: where the employee is sanctioned for bringing their employer into disrepute, and presumably for breaking a variety of express and implied contractual duties, codes of conduct, and workplace policies. These employee duties are clear.

But the interesting question in this increasingly common scenario is what is the nature of the employer’s duty to the employee? Exactly how much abuse should a customer service professional be exposed to before an employer assumes responsibility for stepping in. The hackneyed phrase “the customer is always right” may retain some currency when managing relations with customers, but I’m very doubtful it’s an effective policy for the management of employees. Customers are rarely “right”, and in relation to some customer services settings, namely airlines, restaurants, Emergency rooms, their conduct can be positively abusive. At some point, the implied duty to provide a safe system of work for employees must step in to override the supremacy of the customer, and to create positive duties on the employer. We also have the issue of bullying. It has been recognised for some time that employers owe a duty not to bully employees and to proactively prevent employees from bullying each other. It’s only a very small step to recognize this duty extending to the customer conduct which an employer exposes their staff to.

This will be an interesting area of law as it develops, and I’m positive there will be some case law soon.

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