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Opinion: Undone by off-duty behaviour

Opinion: Undone by off-duty behaviour

By Anthony O’Donnell



Company codes represent a disturbing new frontier of control. 

When rugby player Israel Folau was sacked by Rugby Australia he joined a line of others undone – or nearly undone – by their social media posts. SBS journalist Scott McIntyre and La Trobe University academic Roz Ward are prominent examples, the latter managing to keep her job. As we awaited Folau’s day in court, former public servant Michaela Banerji lost her High Court appeal against dismissal for her pseudonymous tweets critical of government immigration policy.  Sometimes these cases present as unfair dismissal claims. Banerji’s case was argued on the slightly esoteric point of the implied constitutional right to freedom of political communication. Folau’s case is often reported as a breach of his contract. In fact, he is alleging that Rugby Australia itself breached s772 of the Fair Work Act, which prohibits dismissal on the grounds of religion.

But these cases have one thing in common: all involve breach of an employer code of conduct. These codes typically impose a range of vaguely worded obligations on employees.  Like Ward, I work at La Trobe. Our code demands I conduct myself “in a manner that upholds the values, integrity and good reputation of the university at all times”. 

It’s that last phrase that’s the killer: “at all times”. It wasn’t what McIntyre, Folau or Banerji did at work, it was their after-hours activity that got them into strife.

The employment relationship is, by design, a mini despotism. Although cloaked in the rhetoric of contract, whether an arrangement counts as an employment contract hinges in part on whether the employer gets to control the employee. It’s a confoundingly circular argument: your employer gets to boss you around because they have the right to do so. And the basis of that right? The fact they boss you around. Perhaps our old language of “master and servant” law made this clearer than contemporary talk of the “employment contract”.

For a lot of working class jobs, this despotism was part of a trade-off. The law granted the employer wide implied powers of managerial prerogative in return for imposing on it the social obligations of risk pooling. The weekly take-home wage came to be sheltered from market fluctuations, sickness and workplace injury and more determined by rules tied to job classification and rank.

And importantly, workers’ subordination was constrained by the factory whistle: that marker of the clear distinction between the boss’s time and your time. 

For professional staff, the distinction was less clear. As an academic, for example, I don’t really get to “clock off”. Twenty years ago, Ron McCallum published a pamphlet Employer Controls Over Private Life. He was troubled by technology – the internet, the mobile phone – eating away at the boundary between work and non-work. Even before the rise of social media, McCallum could point to a rich catalogue of cases where employers wanted to control seeming non-work related behaviour and workers had contested that control, whether tram drivers wanting to wear union badges, or a Telecom worker wanting to wear a kaftan. 

In her book Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It), Elizabeth Anderson reminds us Henry Ford’s generous wages were conditional on his workers’ behaviour: saving, sobriety and an early night. 

Social media adds a new dimension. Bringing your employer “into disrepute” can depend, now, on little more than a confected controversy driven by other social media users and shock jocks. 

There are clearly times when a worker’s off-duty behaviour is relevant when it’s related to their job and their relationship with colleagues. But company codes seem so broadly worded, and their enforcement entirely at the discretion of the employer, that they represent a disturbing new frontier of control. And these recent cases show they have teeth. 

Getting the right balance between freedom of expression and the prevention of vilification and hate speech is important.

Perhaps the Fair Work Act – not a piece of legislation generally favoured by many of Folau’s champions – will save Folau, and his case will stand as a useful precedent as to whether social media posts amount to religious practice for the purposes of s772. 

In August, the government released a draft religious freedom bill that targets employer codes and would arguably give Folau greater protection than the Fair Work Act provisions. But it’s a narrow immunity based on religious belief, so offers nothing to the likes of McIntyre or Banerji. 

But getting the balance right is the job of the legislature, not something to be left to the capricious whim of employers – Anderson’s "private governments’"– retreating to self-interested “brand management” mode. Many of us might indeed think Folau overstepped the mark. But at the moment this is less an argument about the regulation of speech and more about who gets to do the regulating. ♦

Anthony O'Donnell is senior lecturer, School of Law, La Trobe University.

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