The recent Manly pride jersey saga has once again put the spotlight on an increasingly common tension in the employer and employee relationship: to what extent does an employee need to agree with or support their employer’s social and political beliefs?
The answer to that question largely depends on whether the agreement or support sought by the employer constitutes a “lawful and reasonable direction”.
Unless displaced or modified by an express term, it is an implied term of all employment contracts that an employee will comply with directions from their employer that are both lawful and reasonable.
A direction will be lawful if it involves no illegality and falls within the scope of the employment contract. In other words, an employer cannot direct an employee to do something against the law or that would otherwise contravene the terms of their employment contract.
The question of reasonableness is more difficult to determine because it involves a consideration of all relevant surrounding circumstances, including among other things, the type of work the employee performs, the industry in which the employer operates and even the personal circumstances of the employee.
It is probably trite to say that a direction to “agree” with a particular belief held by the employer will almost never be reasonable. This is because agreement with that belief likely has no bearing on the employee’s ability to perform their role. It would also be an unreasonable curtailment of the employee’s right to their personal system of beliefs.
For example, Manly obviously could not compel its players to agree with the values the jersey represents, being, among other things, inclusivity of LGBTQIA+ players and fans. However, the direction to wear the jersey, even if the player disagrees with the message it sends, is an entirely different matter.
The direction to wear a jersey stipulated by the club could very well be lawful and reasonable.
In directing its players to wear the jersey, the club is promoting its brand as one that accepts and values diversity and inclusivity. While these are virtuous principles in and of themselves, publicly embracing them in the form of a jersey also has an ancillary commercial benefit in the form of (potentially) increased ticket sales and merchandise.
Wearing a team jersey is also quite clearly a requirement on game day to distinguish between the two teams.
As such, the direction to wear the jersey is underpinned by important social, commercial and practical reasons.
Conversely, wearing the jersey during games and promotional outings does not prevent or curtail the player from holding or expressing their personal political or religious views in their own time, nor does it represent a direct denunciation of the same by the player.
Players are also not contracted by the club exclusively for their playing ability on game day; they are also contracted to help uphold and advance the public reputation, image and brand of the club, which is largely dependent on attracting a loyal fan base to remain viable.
It is these types of considerations around the impact on employer and employee that should be borne in mind when assessing whether a direction is a reasonable one and therefore must be complied with.
What happens though when an employer issues a direction and the employee refuses?
Essentially, the employer has two options. The first is to “allow” the refusal and continue the employment. This appears to be the approach adopted by Manly, which has reportedly allowed its players to miss the game without further repercussion. The second is to discipline the employee, including through dismissal.
Both approaches naturally carry risk. If the employee is allowed to refuse the direction, it can undermine the employer’s authority and cause significant damage to workplace morale.
However, if disciplinary action is taken, the employee may respond with legal action. This could be in the form of an unfair dismissal claim (which would likely allege that the direction was not lawful or reasonable) or a discrimination claim (which might allege that the employer had discriminated against them due to their political or religious beliefs).
In response to a discrimination claim, an employer could rightly make the distinction between taking action purely based on a refusal to comply with the direction and taking action based on the particular religious or political nature of the objection. This would ultimately come down to a determination of what has motivated the employer to take the disciplinary action.
In order to help avoid the situation from deteriorating to the point of legal action, consultation with employees is always a good idea. Employers should avoid making any heavy-handed immediate responses to religious or political objections if a reasonable compromise is available.
However, while consultation, compromise, and protecting employees from religious and political discrimination are important, employers should not be deterred from embracing diversity and inclusion because a select number of employees may disagree.
Trent Hancock is a principal and co-founder of Jewell Hancock Employment Lawyers.
