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There are no social media constraints in Israel Folau’s contract – is that enough to save him?

News this morning states that Israel Folau’s contract has no clauses that forced him to behave on social media. However, one legal expert believes that his employer’s case may not need it.



This morning represents the day of judgement swirling around Israel Folau, who has until this afternoon to lodge a protest in the termination of his $4 million Rugby Australia (RA) contract.

However, the state of Israel has taken an odd twist this morning, as The Daily Telegraph has revealed that Folau’s contract does not include the conditions of proper social media behaviour within. According to the Tele, Folau flatly refused to insert the clauses after he signed on the dotted line.

The above will be key to Folau’s defence, which stems the murky line of morally reprehensible, but legally sort of fine. Ok.

In case you missed it, Folau was stood down over his social media posts last week, pontificating that hell awaits “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”.

At the time, the chief executive of RA, Raelene Castle stated that Folau “committed a high-level breach” of the professional players’ code of conduct.

“At its core, this is an issue of the responsibilities an employee owes to their employer and the commitments they make to their employer to abide by their employer’s policies and procedures and adhere to their employer’s values…following the events of last year, Israel was warned formally and repeatedly about the expectations of him as player for the Wallabies and New South Wales Waratahs with regards to social media use, and he has failed to meet those obligations.”

While the Telegraph believes this “bungle” which would see RA face anti-discrimination action themselves, the fact is that the legal grounds that Folau is standing on is a tiny island in a rolling sea of paperwork.

A spokeswoman for The Workplace Employment Lawyers spoke to News.com.au unpacked the subtleties and believes that RA can hang their hat on the fact that Folau breached his contract by going against the legally correct direction they gave the man in question.

“‘Free speech’ in the workplace is qualified by employee’s obligations under their contract. In this case, it appears that Folau was told about RA’s policies and its expectations in relation to his conduct,” she said.

“Given the history, and as Folau is a public figure, RA is likely to have grounds for taking disciplinary action which may include termination of his contract.”

She added: “The NSW Anti-Discrimination Act protects against a ‘public act’ which amounts to vilification…we are not aware of any case law considering vilification in the context of argued religious expression in the workplace. However, recent cases show that vilification via social media is being considered by the courts.”



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