How far does an employee’s right to religious expression extend?
Employment contract law has some real basic obligations expected of each party.
The Employer pays the employee for services given. The Employee tenders services for payment. This relationship is regulated by rules of conduct, usually set out in Policies and Codes of Conduct. Failing these, the statutory obligations of ‘good faith’ and ‘fiduciary duty’ guide the relationship. But what happens when apparent breaches of contract collide with freedoms of religion and speech?
Close to home, Israel Folau was the Wallabies' star player. Folau posted anti-gay messages on his Instagram and Twitter accounts in early 2019. Rugby Australia decided to terminate Folau’s employment due to a serious breach of the professional players’ Code of Conduct, which set out clear guidelines of expected player behaviour, including the use of social media. The Australian Rugby Union has some contractual obligations of their players, one of which is that the player should not behave in a way that brings the game into disrepute. The Rugby Union cited breach of contract for the termination. And to compound it, Folau had been earlier warned not to post media statements of this nature. But he did. Despite requests from his employer, he refused to take the post down.
Folau has challenged the dismissal and is seeking A$10m in compensation. He is arguing that the matter involves freedom of speech and freedom of religion, and that he has been discriminated against unfairly.
There is not a precedent to tell us how far an employee’s right to practise their religion extends. New Zealand and Australia have no case law specifically on an employer's right to impose standards of conduct on its workers and an employee's right to religious expression. The success or failure of Israel Folau's claim against Rugby Australia rests on one central, unresolved legal question.
How far does an employee’s right to religious expression extend?
It is ‘common sense’ that employees should be able, in their private time, to speak freely about their beliefs, without fear of being dismissed.
The issue is the balancing of this right and an Employer’s right to limit behaviour that is disrespectful or reflects badly on the employer, in the work arena. The right to freedom of expression is not an unqualified right: professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes. And, just because a belief is said to be a religious belief, does not give a person subject to professional regulation the right to express such beliefs in any way he or she sees fit.
It would be absurd if an employee could breach an employment agreement by not turning up to work every Monday by stating that it is because of their religious beliefs. Or to claim that an employee should be shielded from any consequence for swearing at the boss, because she was exercising her ‘right to free speech.’
New Zealand Employers have generally been pretty successful through the use of contractual codes and policies at disciplining or dismissing an employee for personal communications such as social media posts outside of work, if there has been sufficient connection to the employee's employment. A review of New Zealand case law indicates that the Folau argument may not win. It is not correct that an employee’s religious freedom of expression will be fundamentally encroached if an Employer has a Code of Conduct that contacts otherwise. An employee can still think what he likes, and say what he likes, about homosexuals and sinners. But the minute he verbalises or texts or writes it on social media, that comes with contractual consequences. That is not free speech being unjustly restrained but is his choosing his religious conviction over his contractual obligations. A choice he is free to make.
To take it one step further – if an employee was able to claim freedom of speech and/or religion as an entitlement to void contractual agreements by claiming a right to exercise their beliefs, what would that mean for an employer who wants to dissociate itself from an employee whose conduct is inconsistent with their values? And the Rugby Union faced loss of sponsorship and serious erosion of their inclusive values.
Test of limitations imposed on an employee
The test for any New Zealand employer will be – are the limitations imposed on an employee reasonable and is the employee aware of the limits. Folau had been told by his employer where the line was, and that as an RA employee, he was obligated to treat people with dignity and respect. He crossed the line. Twice. An Employer is entitled to set and enforce its own standards, so long as these are fair and reasonable, judged objectively.
Interestingly, and indicative of a different approach in New Zealand, Maria Folau – a talented and high profile Silver Fern player – posted her support for her husband’s GoFundMe page, raising donations towards his legal fees. Her Employer - Netball New Zealand - issued a statement that whilst it in no way endorsed her reposting of her husband’s funding post, it maintained that she had not breached any of its policies, despite pressure from major sponsors. This decision was supported by the former President of the Australian Human Rights Commission, Gillian Triggs, who stated: “ I can’t see any reason in a free society that raising funds to test Israel Folau’s case in the courts is wrong.’’
It is highly likely that a settlement will be reached in the Folau case. But if it does go to trial, I think the employer’s contractual right to impose standards of behaviour will trump the rugby star’s right to express his religious views. These cases – of a husband and wife expressing a religious view point on either sides of the ditch – should cause every New Zealand Employer to take a close review of their Social Media Policy, to ensure it contains a clause stating the Agreement can be terminated for repeat offences, so that this very public debate does not carry your company name as a headline in tomorrow’s newspapers.
The Folau case has been the catalyst for a very interesting and important public debate about the appropriate limits of an employer's prerogative to regulate the private lives of employees. The appropriate balance between the rights of employers and freedoms of employees will likely be a feature of robust discussion and employment law cases for some time to come.
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