Izzy Folau

[Kiwiwomble]

It is perfectly reasonable to sign a contract and believe some elements are unenforceable (therefore illegal) if the rest of the contract meets your requirements especially if you believe the contract will be less favourable if you don't sign it.

I when I was a tenant did sign some clauses that I knew were unenforceable but it's not my fault the landlord didn't know that. More importantly they wouldn't agree to the tenancy without them.

However non compete clauses are fairly standard and completely enforceable as are IP ones I have to sign. As are codes of conduct especially when they invoke not offending customer due to their race/religion/sexuality in fact they usually amount to gross misconduct and instant dismissal. And yes just because it offend your religion isn't a good enough reason.

Agree to disagree on that, personally I think that's dodgy, if I'm happy to screw someone over then I wouldn't want to be contractually connected to them, or conversely, if I want my employer to treat me well then I'd want to start by both parties being up front when the contract is signed

 

[Malleeboy]

Firstly I think Israel should not have posted precisely because it would offend people, however much of that offense comes from the general public misunderstanding the terms used. People tend to think they know what the words mean and understood the post in those terms. The tone of the post made it look like Israel was standing above others and pointing an accusing finger at them or that is how most people perceived it.

I have heard people say that the list of sinners that Isreal would mean it covered practically everyone, which they don't understand is original point of the list when used in the bible. The word "sinner", most Australian think it means "bad" people, or people who do "bad" things, so to include someone on a list of "sinners" is to assert they are bad. However in Christianity it means all people, including all Christians and including Isreal Folau himself. For example the guy who wrote most of Christian part of the bible, referred to himself as the "cheif of sinners".

Likewise to call someone to repentance, is not to imply that they are bad or evil in the everyday sense that people have of others. Christian beleif is that eveyone needs to repent, it is not that eveyone is in general terms evil but that no matter how good someone is that repentance is still required.

Now it is silly to post things that are likely to be misunderstood and offend because for the general public understanding of words are different from a particular groups.

However the question is should Isreal be punished because his post was perceived in one way but he himself may have perceived the post differently?
Whilst I think in the Australian context any public utterance should be made in line with how the general public understand words, but if a particular group has different understanding, one that is historically the way they have always understood those terms, should thay be banned from using those terms?

 

[Hulk Hogan]

Not sure if it has been pointed out or not as I'm not going to bother reading through 14 pages, but Australia does not have "Freedom of Speech" in that free speech is not a right we legally hold (Unlike America where it is in their bill of rights) that being said the ARU are in theory free to enforce what they believe as acceptable and unacceptable. I'm not taking a side in this debate.
I don't care if someone is gay, I don't care if someone's religion means they aren't that keen on gays. I don't mind if Folau misses the world cup.

 

[TRF_heineken]

If you sign a contract in bad faith, then you are in principle not agreeing to the contract, as you are not abiding by the essentialia of the agreement. Which is that both parties must willfully agree to the terms, and sign it bona fide.

Non-compete clauses are there specifically to protect the employer, to prevent employees from stealing their ideas or clients and setting up shop in the same jurisdiction as the employer's area of business. If you sign a non-compete in bad faith, then it means you have the intention perhaps in future to do exactly that. Steal their business.

I think people are trying to be overly technical on this issue, without the background to have a sustainable argument.

 

[ncurd]

Agree to disagree on that, personally I think that's dodgy, if I'm happy to screw someone over then I wouldn't want to be contractually connected to them, or conversely, if I want my employer to treat me well then I'd want to start by both parties being up front when the contract is signed

You have to remember unenforceable clauses are essentially the other party trying to screw you over and your lack of knowledge of the law or ability to bring in a lawyer. They are deemed unenforceable due to being unfair or illegal.

A person absolutely needs to absolutely protected against them regardless of they knew they were unfair or not at the time of signing.

 

[Cruz_del_Sur]

If you sign a contract in bad faith, then you are in principle not agreeing to the contract, as you are not abiding by the essentialia of the agreement. Which is that both parties must willfully agree to the terms, and sign it bona fide.

Cute theory. The problem with that is that the burden of proof is with the ones questioning the bad faith. Good luck with that.
People would admit bad faith to friends, family and/or close workers, not in writing to their boss or HR.

Non-compete clauses are there specifically to protect the employer, to prevent employees from stealing their ideas or clients and setting up shop in the same jurisdiction as the employer's area of business. If you sign a non-compete in bad faith, then it means you have the intention perhaps in future to do exactly that. Steal their business.

No. If that protection comes at the expense of another (constitutional) right then there might be the case where such protection is in conflict with other rights and therefore unenforceable.

I have to ask: have you ever read any non compete from pretty much any big company in, say, Europe? If you were to follow them to the letter, after you leave (voluntarily or not), you can't work for any supplier, service provider or competitor, past or present, for a period of 2-5 years in every jurisdiction the company does business in or with. People from companies like unilever, phillips, abi, diageo, nestle, ge, lvmh or p&g (big companies, global reach, tens of thousands of suppliers/etc) would be basically unemployable anywhere if you enforce those contracts. That's why they dont stick and are not pursued legally.

People tend to become specialists and that means that there is a strong chance you will stick to a specific field/industry (IT and HR tend to be exceptions to this). Even in generic things like finance, it's strange to find someone who specialized in consumer goods switching to commodities or mining. Happens but it hardly the norm. You become a specialist and that's what allows you to bring value to the table. Saying you cant work in the industry anymore (as it would mean working for the competition) is seen as a limit to your right to work in quite a few jurisdictions.

I know people who signed non competes and then moved from unilever to p&g, from nike to adidas, from puma to UA, from diageo to abi, from heineken to diageo. Not one of them was called out on their non compete. Not one. And when you ask "why?" they all tell you the same: it's expensive and odds are you will lose.

Unless it's someone very high up and with very specific knowledge or you can take clients away, they are virtually unenforceable.

PS: Just imagine if rugby players were asked to sign non competes.

 

[smartcooky]

Not sure if it has been pointed out or not as I'm not going to bother reading through 14 pages, but Australia does not have "Freedom of Speech" in that free speech is not a right we legally hold (Unlike America where it is in their bill of rights) that being said the ARU are in theory free to enforce what they believe as acceptable and unacceptable. I'm not taking a side in this debate.
I don't care if someone is gay, I don't care if someone's religion means they aren't that keen on gays. I don't mind if Folau misses the world cup.

Well the US Bill of Rights is just the first 10 amendments to their Constitution, and the First Amendment (often abbreviated "1A") is the Freedom of Speech one. However it is a term that is often bastardized and totally misunderstood. So many people (including many here on this forum) incorrectly characterize the the Right to Free Speech as being the right to say what they like, when they like to whoever they like, without any consequences. This characterization is completely incorrect.

The First Amendment States: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What this means is that the GOVERNMENT cannot make any Law that restricts your speech. It does not mean that, a club, a business, an organization, an internet platform or an employer cannot restrict what you are allowed to say. If anyone here disagrees with what I have just said, go have a read of the Terms and Conditions you agreed to when joining this forum. Those Terms and Conditions contain limits on your freedom of speech; limits that you agreed to. Even here, you are not free to say anything you please without consequences. Violate the Terms and Conditions too often, and the mods could boot you out.

 

[smartcooky]

Firstly I think Israel should not have posted precisely because it would offend people, however much of that offense comes from the general public misunderstanding the terms used. People tend to think they know what the words mean and understood the post in those terms. The tone of the post made it look like Israel was standing above others and pointing an accusing finger at them or that is how most people perceived it.

I have heard people say that the list of sinners that Isreal would mean it covered practically everyone, which they don't understand is original point of the list when used in the bible. The word "sinner", most Australian think it means "bad" people, or people who do "bad" things, so to include someone on a list of "sinners" is to assert they are bad. However in Christianity it means all people, including all Christians and including Isreal Folau himself. For example the guy who wrote most of Christian part of the bible, referred to himself as the "cheif of sinners".

Likewise to call someone to repentance, is not to imply that they are bad or evil in the everyday sense that people have of others. Christian beleif is that eveyone needs to repent, it is not that eveyone is in general terms evil but that no matter how good someone is that repentance is still required.

Now it is silly to post things that are likely to be misunderstood and offend because for the general public understanding of words are different from a particular groups.

However the question is should Isreal be punished because his post was perceived in one way but he himself may have perceived the post differently?
Whilst I think in the Australian context any public utterance should be made in line with how the general public understand words, but if a particular group has different understanding, one that is historically the way they have always understood those terms, should thay be banned from using those terms?

What is it going to take? Nothing you have posted is relevant to this issue.

The only thing that matters is that Folau posted what he did several months ago - he was taken to task for what was considered to be offensive, homophobic remarks - he said that he understood that his remarks offended people - he agreed not to do it again - he then did do it again.

This shows a couple of important things about Folau that would make any potential employer wary. Firstly, its clear that he wasn't really sorry he did it (and that makes him a liar, so off to hell with him), and secondly, he has flushed his own credibility down the toilet - he could not be trusted not to do it again.

Its all about the money for him how. The Waratahs don't want him back, and Michael Cheika has been clear that his Wallabies career is doneburger.

 

[TRF_heineken]

Cute theory. The problem with that is that the burden of proof is with the ones questioning the bad faith. Good luck with that.
People would admit bad faith to friends, family and/or close workers, not in writing to their boss or HR.



No. If that protection comes at the expense of another (constitutional) right then there might be the case where such protection is in conflict with other rights and therefore unenforceable.

I have to ask: have you ever read any non compete from pretty much any big company in, say, Europe? If you were to follow them to the letter, after you leave (voluntarily or not), you can't work for any supplier, service provider or competitor, past or present, for a period of 2-5 years in every jurisdiction the company does business in or with. People from companies like unilever, phillips, abi, diageo, nestle, ge, lvmh or p&g (big companies, global reach, tens of thousands of suppliers/etc) would be basically unemployable anywhere if you enforce those contracts. That's why they dont stick and are not pursued legally.

People tend to become specialists and that means that there is a strong chance you will stick to a specific field/industry (IT and HR tend to be exceptions to this). Even in generic things like finance, it's strange to find someone who specialized in consumer goods switching to commodities or mining. Happens but it hardly the norm. You become a specialist and that's what allows you to bring value to the table. Saying you cant work in the industry anymore (as it would mean working for the competition) is seen as a limit to your right to work in quite a few jurisdictions.

I know people who signed non competes and then moved from unilever to p&g, from nike to adidas, from puma to UA, from diageo to abi, from heineken to diageo. Not one of them was called out on their non compete. Not one. And when you ask "why?" they all tell you the same: it's expensive and odds are you will lose.

Unless it's someone very high up and with very specific knowledge or you can take clients away, they are virtually unenforceable.

PS: Just imagine if rugby players were asked to sign non competes.

Yes, I have seen non-competes. I've even drafted non-competes for clients. But there are various factors in a non-compete, and there are ways to prove the employee signed in bad faith (mala fide).

The thing is, that these big corporations as you mentioned, won't bother with legal issues, unless it's someone like a CEO/CFO/Marketing Manager etc. who signed the NC. But then again, most of those high-level employees, have special NC drafted specifically for that post, and not a generic one given to the regular employee.

But I still don't get the point you want to get to regarding NC's and Rugby. If Rugby Australia had an NC clause in their contract, and a player would breach that NC, it would only apply within the jurisdiction of the RA, and that is Australia, so there really is no point in having an NC. If Folau signed an NC with RA, and he breaches contract, then it's grounds for dismissal and termination of contract, and he would be prevented from playing rugby in Australia for any other Rugby Union Affiliated to rugby union in Australia, and there isn't another one. So Folau can just go and play abroad, and even then play in Australia against Australian opposition.

NC's won't work in Sport, as the Jurisdiction is very limited to regional areas, and isn't like an international conglomerate like Coca-cola or whatever other company you want to think of.

The only way an NC would work in Rugby. Is if WORLD RUGBY was the central employer of all players all over the world.

I think we should leave this argument here, as there is really no point in delving any further in this matter.

 

[Derpus]

If you sign a contract in bad faith, then you are in principle not agreeing to the contract, as you are not abiding by the essentialia of the agreement. Which is that both parties must willfully agree to the terms, and sign it bona fide.

Non-compete clauses are there specifically to protect the employer, to prevent employees from stealing their ideas or clients and setting up shop in the same jurisdiction as the employer's area of business. If you sign a non-compete in bad faith, then it means you have the intention perhaps in future to do exactly that. Steal their business.

I think people are trying to be overly technical on this issue, without the background to have a sustainable argument.

Technically true but practically useless because it's nigh on impossible to establish bad faith, short of outright admission.

 

[Derpus]

What this means is that the GOVERNMENT cannot make any Law that restricts your speech. It does not mean that, a club, a business, an organization, an internet platform or an employer cannot restrict what you are allowed to say. If anyone here disagrees with what I have just said, go have a read of the Terms and Conditions you agreed to when joining this forum. Those Terms and Conditions contain limits on your freedom of speech; limits that you agreed to. Even here, you are not free to say anything you please without consequences. Violate the Terms and Conditions too often, and the mods could boot you out.

This is a very good analogy. Thumbs up to you sir.

 

[TRF_heineken]

Technically true but practically useless because it's nigh on impossible to establish bad faith, short of outright admission.

Well the cases I've read where this was contested, there was usually a character witness who was close to the person who acted in bad faith. Also the employer used job performance reviews, and e-mails from the employee's workstation where he discussed terms with another company, and what he can bring to them from his current employer.

Yes, the onus will be with the employer, but if the employer provides sufficient evidence to support it's case, the onus will go to the employee to prove that it wasn't the case.

In SA courts, when one party acts bona fida throughout the process, and there is just a whiff that the other party isn't, then the courts will usually back their claim 9 times out of 10.

But it has happened, even without an admission.

 

[BobbyM]

Delighted that Heineken has picked up the baton in my absence and thoughtfully developed the argument.

To add to the above, we also may be overlooking the fact that he was previously reminded of the code of conduct (after his first offence) and then proceeded to re-sign. Fairly intuitive that he was thus aware of the details of the code of conduct relevant to this issue at the point he re/signed. Thus, as above, a signature was made in bad faith.

 

[Malleeboy]

What is it going to take? Nothing you have posted is relevanbutt to this issue.

The only thing that matters is that Folau posted what he did several months ago - he was taken to task for what was considered to be offensive, homophobic remarks - he said that he understood that his remarks offended people - he agreed not to do it again - he then did do it again.

This shows a couple of important things about Folau that would make any potential employer wary. Firstly, its clear that he wasn't really sorry he did it (and that makes him a liar, so off to hell with him), and secondly, he has flushed his own credibility down the toilet - he could not be trusted not to do it again.

Its all about the money for him how. The Waratahs don't want him back, and Michael Cheika has been clear that his Wallabies career is doneburger.

Smartcooky,

He made a statement of traditional Christian beliefs using traditional Christian language, albeit in a clumsy and unnuanced manner. He used a universal term "sinners" that applies to all people. He used a term "repent", which is expected of all people. He included homosexuals in a list of sinners but that list was effectively universal in application. (eg "idolators" refers to all people who don't follow the right God). He did not in this post in anyway single out or exclude gay people from the rest of humanity. Now you might find the traditional Christian beliefs on homosexuality as homophobic and that any statement that expresses that belief as homophobic. I think we are reaching the point when people will see even the most nuanced defence of these beliefs as homophobic.

So you leave committed traditional Christians with limited choices...

1) Give up their beliefs, and accept current morality. For some people their beliefs are central to who they are (eg Eric Liddell)
2) Hold their beliefs but be silent (however they are under biblical command to share their faith and defend it)
3) Hold their beliefs personally but express current morality publicly, however do we really want people to be hypocrites?

I

 

[smartcooky]

He made a statement of traditional Christian beliefs using traditional Christian language, albeit in a clumsy and unnuanced manner. He used a universal term "sinners" that applies to all people. He used a term "repent", which is expected of all people. He included homosexuals in a list of sinners but that list was effectively universal in application. (eg "idolators" refers to all people who don't follow the right God). He did not in this post in anyway single out or exclude gay people from the rest of humanity. Now you might find the traditional Christian beliefs on homosexuality as homophobic and that any statement that expresses that belief as homophobic. I think we are reaching the point when people will see even the most nuanced defence of these beliefs as homophobic.

He is entitled to his beliefs; he is entitled to express those beliefs, so long as what he posts is not insulting or pejorative of protected groups, particularly if doing so conflicts with the stated policy of his employer.

So you leave committed traditional Christians with limited choices...

Yes, and so they should be limited, just like everyone else's choices.

I don't have the right to violate my employer's public policy by vilifying and insulting members of the community based on their sexual orientation; explain to me why Christians should be any different. Why are they so special that they should be granted exclusive permissions to express their views beyond the restrictions that others face?

If a rugby player was a white supremacist, with a belief system that states black people should all be forcibly repatriated to Continental Africa, can he claim the unimpeded right to make an Instagram post that says "All ****ers should be sent back to Africa"?

1) Give up their beliefs, and accept current morality. For some people their beliefs are central to who they are (eg Eric Liddell)

NO ONE IS EXPECTING OR ASKING THIS OF THEM.

2) Hold their beliefs but be silent (however they are under biblical command to share their faith and defend it)

Their Biblical commands are not my problem, and nor should they be anyone else's. There are times and places for them so spread the word about their faith. They can do what Jehovah's Witnesses and Mormons do, and go door to door. They can do what Open Air Campaigners do and hold concerts and rallies in public places to get their message out.

3) Hold their beliefs personally but express current morality publicly, however do we really want people to be hypocrites?

Again NO ONE IS EXPECTING OR ASKING THIS OF THEM.

 

[BobbyM]

"He included homosexuals in a list of sinners but that list was effectively universal in application." - now if he had said all people are sinners then this wouldn't even be a discussion. He didn't though. He targeted his posts at certain specific groups, including a specific group in society, on the basis of their sexual orientation.

Indeed, one has to wonder why he sought to (again) single out homosexuals in his comments, given he feels we are all sinners.

 

[ncurd]

Now you might find the traditional Christian beliefs on homosexuality as homophobic

That's because they are.

 

[Vieux Talonneur]

This is just going to run and run....

https://www.theguardian.com/sport/2...labies-facing-player-mutiny-over-israel-folau

 

[smartcooky]

"He included homosexuals in a list of sinners but that list was effectively universal in application." - now if he had said all people are sinners then this wouldn't even be a discussion. He didn't though. He targeted his posts at certain specific groups, including a specific group in society, on the basis of their sexual orientation.

Indeed, one has to wonder why he sought to (again) single out homosexuals in his comments, given he feels we are all sinners.

Thank you Bobby.... this is the bit that some people just don't get.

If Folau wanted to say, that "all sinners must repent if they want to avoid purgatory", no one would have a problem with that. However, he drew a bead on a particular section of Society based on their sexual orientation and then let rip on them. THAT is where he crossed the line, and THAT is where he gets into trouble.

 

[smartcooky]

This is just going to run and run....

https://www.theguardian.com/sport/2...labies-facing-player-mutiny-over-israel-folau

Its a but much to call two players kicking up a fuss a "player mutiny" - Samu Kerevi and Taniela Tupou are replaceable players. If they want to put their careers in jeopardy, its up to them

However, the majority of Wallabies and senior rugby players in Australia have spoken out against Folau. None of the NZ PI's have said anything in support of Folau; they have either spoken out against him, or remained silent.