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Sacked rugby international Israel Folau (left) and ANU Law expert Dilan Thampapillai.
Sacked rugby international Israel Folau’s (left) case could hinge on the characterisation of his obligation to adhere to Rugby Australia’s player social media policy, says ANU Law senior lecturer Dilan Thampapillai. Photo by David Molloy via Wikimedia Commons (CC BY 2.0)

There are really two issues here. The first is whether the social media policy does form part of his contract. The second is whether his breach of that, if there is a breach, is so substantial as to warrant termination of the contract.

A high-profile legal dispute between Rugby Australia (RA) and sacked Wallabies star Israel Folau over alleged breach of contract looms as a “test case for ordinary employees”, according to ANU Law senior lecturer Dilan Thampapillai.

Folau's contract was terminated last month following an Instagram post where he derided homosexuals, among others, as sinners destined for hell unless they repented.

The case has ignited debate about freedom of religion, but RA insists Folau was in breach of its code of conduct regarding player behaviour, including on social media, which all players agree to upon signing their employment contracts.

“I strongly disagree with what Folau wrote. However, the real test here is what it means for ordinary employees and their relationship with their employers,” said Mr Thampapillai, Master of Laws director and contract law lecturer.

“If he (Folau) had said a homophobic, sexist or racist slur on the football field, he would likely have been disciplined through suspension of matches and a fine. There then is the question if that is the sanction for saying something like that on the football field, why is the sanction so different vis-à-vis social media?”

The case, unprecedented in Australian sport, is currently before the Fair Work Commission. It will test RA's right to dismiss Folau for breaching his contract, versus his right to express his religious beliefs.

A key focus will be on the characterisation of the obligation within RA’s social media policy for players, said Mr Thampapillai, specifically whether it is a condition or intermediate term of Folau’s contract.

“There are really two issues here. The first is whether the social media policy does form part of his contract. The second is whether his breach of that, if there is a breach, is so substantial as to warrant termination of the contract,” he said.

“On the first issue, the incorporation, I would think that there is an argument that proliferation of terms does mean that he has, through performance and continued observance of his contractual relationship with RA, come to be bound by that policy.

“The only caveat I’d put on that is if Folau, in private or through his representatives, expressed clear objections to that. The only way we’ll know that is if it’s tested before the court,” Mr Thampapillai added.

Australian sport administrators are certain be watching the outcome closely as most have similar codes of conduct to RA's.

However, the case may have wide-ranging implications for the way employers deal with discrimination claims in the workplace, noted Mr Thampapillai.

“This is a test case for ordinary employees. Simply put, it’s the creeping power of the employer to increase your obligations to them while they don’t necessarily reciprocate,” he said.

Dilan Thampapillai

Senior Lecturer

Updated:  24 August 2017/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team