Arguably Australia’s best rugby union player has today elected to proceed to a Code of Conduct hearing put together by Rugby Australia, after having been served with a breach notice in relation to a post on his social media platforms last week. He was given 48 hours to accept a sanction or have the matter referred to a Code of Conduct hearing. He is alleged to have breached the Code of Conduct applicable to him as a professional rugby player for Australia by tweeting and posting on Instagram that (amongst other things) homosexual people will go to hell. He has made similar social media posts in the past. If his hearing is successful, he returns to the Wallabies squad and will be clear to play in the World Cup. If he fails, his $4 million contract is terminated.
There are said to be a number of legal issues, including freedom of expression of religious views, and conversely expressly breaching an inclusiveness policy and a social media policy of his employer. Are the actions of Folau in tweeting and posting homophobic statements on Instagram serious enough to warrant termination of his substantial contract, or is it a breach that warrants a lesser penalty, such as a warning, fine, or suspension? Further muddying the waters are reports that Folau’s contract with Rugby Australia failed to include a clause containing social media restraints and that he refused to have such a clause retrospectively inserted into his contract.
Complicating the legal questions is the fact that the national coach Michael Cheika has said he will not select Folau in a team at the moment, and a number of players have expressed that they do not agree with his views, and may not want to play alongside him.
If he is cleared by the Code of Conduct hearing to return to work and take his place in the Wallabies side for the World Cup later in the year, does this then create an unsafe workplace, where teammates may not play as tenaciously with him, and create a risk of safety to themselves and others?
It is also reported that homosexual staff at Rugby Australia may have grounds under anti-discrimination legislation to lodge complaints that their workplace did not take necessary measures to protect them if Folau returns to play for the Wallabies.
So how badly does Australia need probably its best player – and one of the world’s best players – in a World Cup year? Not at the expense of team culture, an issue that played out in Australian cricket 12 months ago. We will soon find out. There is a lot of devil in the detail of this case, for social inclusion policies, safe workplaces, freedom of expression and employment law.
There is no date set for the hearing as yet, however Rugby Australia released a statement today noting that “[a]fter the date of the hearing is confirmed, Rugby Australia and the NSW Rugby Union will make no further comment on the matter until the Code of Conduct process has concluded.” The hearing will take place before a panel comprising of a Rugby Australia representative, a Rugby Union Players’ Association (RUPA) representative and an independent third person appointed with the approval of both Rugby Australia and RUPA.
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