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Should Israel Folau have been fired?

23 May 2018

Israel Folau certainly created controversy when several weeks ago he answered a query on Instagram about God's plan for homosexuals. Folau commented "HELL … unless they repent of their sins and turn to God".

And what a backlash that brought.

Hurricanes Vice-Captain TJ Perenara tweeted he is "100 per cent against the comments made by Israel" and there is "no justification for such harmful comments".

In the last few days, Wallabies coach Michael Cheika has finally expressed his view. He refused to criticise Folau's beliefs but did say that anyone who disagreed with Folau's views, including those on homosexuals, should simply ignore them.

When asked about the impact of young people, Cheika said parents should protect their children from harmful posts anyway. Readers may think that is a bit of a cop-out as this story has expanded going well beyond a few tweets or Instagram comments.

Since his initial statement, Folau has explained that he didn't want to judge peoples' lives but thought that he had an opportunity to save someone with what he wrote.

He said he believed the person asking was looking for guidance and he answered him honestly and from the heart. Folau says suggestions he is "homophobic and bigoted could not be further from the truth".

Assuming Folau is an employee of Rugby Australia, could he be justifiably dismissed or at least censured or given a warning for his condemnation of homosexuality? Should he be entitled to express his views through exercising his right of free speech?

If he expressed a view supportive of gay people would his employment be at risk?

In New Zealand freedom of expression is limited by the Human Rights Act which prohibits hate speech in relation to race or ethnicity but not sexual orientation.

However, discrimination on the basis of sexual orientation is prohibited by the legislation.

Of course, Israel Folau could be disciplined if he brought his employer into disrepute.

Recall the famous case of Hallwright and Forsyth Barr. Forsyth Barr dismissed a well-known investment analyst because of his conviction for grievous bodily harm, which became widely publicised.

While driving his car outside work hours, the employee got into a row with another motorist and then drove over the motorist as he was departing the scene, causing significant physical and likely psychological injuries.

His conviction brought the employer into disrepute and compromised the employee's ability to do his job. The conduct didn't have to be directly linked to his employment, but it needed the potential to impact negatively on it. Hallwright's dismissal was justified.

It's hard to escape the conclusion that economics is a significant factor in what an employer does. Israel Folau is one of the best rugby players in the world.

He has a significant following and is able to pull crowds to a game. No wonder Rugby Australia's chief executive, Raelene Castle, said that the controversy stirred by Folau's comments was "the singularly most difficult thing" she had ever had to deal with during her career.

To complicate matters further, Qantas is the principal sponsor for rugby in Australia and chief executive Alan Joyce, who is a strong advocate for gay rights, said Folau's comments were very disappointing. So Rugby Australia needs to manage their important sponsorship relationship as well.

Another question is whether an employer can give an employee a lesser sanction than they might give another employee because they are an outstanding performer.

Aaron Smith got a warning for his antics in an airport toilet in 2016. He was travelling with the All Blacks in their travel uniform and was caught having sex with a woman who was not his partner in a disabled toilet at Christchurch Airport.

Aaron Smith and Israel Folau are both hugely valued members of their national teams and many would think they shouldn't be dismissed even if they could have been. A valuable employee in any business is likely to get credit for their good contribution to the cause when the employer is deciding what sanction to apply.

Presumably that concept can apply in the same way to these two. But is that fair?

Even if it were possible to consider Folau's behaviour as serious misconduct, the employer doesn't have to dismiss for it. Other sanctions are available.

It is hard to believe Israel Falou is likely to be dismissed from his employment because of his comments about homosexuality, even if he repeats them, because of the view that he should be allowed to express his deeply personal and strongly held Christian beliefs.

Perhaps also because he is too valuable as a player. Readers are bound to have very different and strongly held views on Folau's right to express himself in the way that he does.

Competing human rights principles, economics, and Australia's need for a strong rugby team will all play a part in determining what Folau's future looks like.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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