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Rebels Who Dislike the Cause: Can Employees Be Directed to Act Contrary to Beliefs?
The recent controversy over the Manly Warringah Sea Eagles ‘rainbow’ rugby league jersey raises an interesting employment law question which extends beyond football: to what extent can an employer direct an employee to promote, or be involved in, a cause, message or campaign to which the employee objects?
The starting point is, of course, the express terms of the applicable employment contract. This is, however, unlikely to be of much assistance. While the employment contracts for some media and sporting talent will contemplate and specifically address the issue, the overwhelming majority of employment agreements will be silent on it.
In those instances, an employer wanting to direct an employee to participate will need to rely upon the implied contractual term that the employee will obey the lawful and reasonable direction of the employer. In a recent unfair dismissal decision, dealing with mandatory workplace vaccination, Jovan Jovcic and Filip Markovic v Coopers Brewery Limited [2022] FWC 1931 (Jovcic), the nature of this implied term was considered (at 53):
“A contract of employment contains an implied term that the employee will obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two distinct dimensions. One is that the direction must involve no illegality. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621 – 2 per, Dixon J). The latter requirement reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J). Whether a direction is reasonable is a question of fact to be determined having regard to all of the circumstances.”
The relevant direction from the employer will almost invariably be lawful. Unless the employer is directing the employee to be involved in an illegal protest, the question of whether the direction is lawful will not be determinative. The more salient and contentious question is likely to be whether the direction is reasonable.
In considering whether the direction is reasonable, the beliefs of employee (particularly religious convictions) can become relevant. The Jovcic decision addresses the conflict between a direction from an employer and the beliefs of an employee (at 81):
“There will be occasions where the exigencies of work collide with an employee’s personal beliefs and require difficult decisions to be made. It would be unreasonable to require workers to choose between their beliefs and their work without good reason.”
As such, there would need to be a ‘good reason’ to compel an employee to promote, or be involved in, a cause, message or campaign which is incompatible with the beliefs of the employee. As noted above, Jovcic was a decision relating to a workplace vaccine mandate (to which objections on the basis of religious belief were raised), and in that context it was noted (at 81):
“…in this case, there were good reasons. The policy was in line with ATAGI and government advice that vaccinations reduced transmission. It was directed at the wellbeing of all workers on site, especially those known to be immunocompromised. It served the company’s legitimate interests in maintaining continuity of operations. The policy was responsive to identified risks. It was within reasonable bounds for the company to take the cautious approach that it did to the risk of transmission, to require compliance with the policy, and to decline to grant exemptions to the applicants.”
It is a trite observation that what constitute ‘good reasons’ will depend on the circumstances of the case. To use the Manly Sea Eagles controversy as an illustrative example (assuming there is no applicable express term in the player contract), the good reasons could arguably include the importance of the club being involved in promoting inclusivity (through the wearing of the “rainbow” jersey) and the role players have as ambassadors of the club to advance its broader commercial and reputational interests, beyond the core duty of playing football to the best of their ability. Considerations such as these might have arguably tipped the balance in favour of players being compelled to subjugate their personal beliefs to the interests of the club and be directed to play. (As it happens, this is moot as it has been reported players who are objecting to wearing the jersey are being permitted to sit out the game for the round.)
Away from the worlds of media, sports and entertainment, it might be harder to mandate the involvement of an employee in a cause that conflicts with their beliefs. The employer will need to demonstrate some benefit or importance attached to the involvement of the specific employee to whom the direction is given. That might be difficult if the employee does not have a public, or prominent internal, dimension to their role.