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.