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Employment lawyer Josh Bornstein expects more sackings like Israel Folau’s for social media posts

Former Wallabies star Israel Folau isn’t the first Australian to be sacked over a social media post – and a top employment lawyer has warned the problem is set to get worse.

Josh Bornstein, who represented three people dismissed for expressing controversial views on Twitter, has spoken out against employers who are stifling freedom of speech. 

The principal lawyer for class action litigator Maurice Blackburn described social media sackings as ‘a dramatic infringement on our personal rights and it’s only going to get worse’.

Israel Folau isn’t the only Australian sacked over social media posts with a top employment lawyer warning the problem is set to get worse (he is pictured right with his wife Maria)

‘The effect is that is to start to interfere with people’s ability to participate in democracy with all that entails, including disagreement and controversy and occasionally offending other people,’ he told Daily Mail Australia.

Mr Bornstein has represented Safe Schools creator and academic Roz Ward, who was suspended in 2016 by La Trobe University for describing the Australian flag as racist.

His other clients have included Angela Williamson, who Cricket Australia sacked last year for criticising on Twitter Tasmania’s lack of abortion procedures in public hospitals.

Then there was Scott McIntyre, who was sacked an SBS sports reporter four years ago over a series of Anzac Day tweets describing Australian Diggers as murderers, rapists and thieves, following pressure from former prime minister Malcolm Turnbull.

Safe Schools academic Roz Ward, who was suspended in 2016 by La Trobe University for describing the Australian flag as racist (she is pictured left with Victorian Deputy Premier and Education Minister James Merlino)

Safe Schools academic Roz Ward, who was suspended in 2016 by La Trobe University for describing the Australian flag as racist (she is pictured left with Victorian Deputy Premier and Education Minister James Merlino)

Folau, a fundamentalist Pentecostal Christian, was sacked by Rugby Australia last month, over a tweet calling on ‘drunks, homosexuals, fornicators, adulterers, liars, fornicators, thieves, atheists and idolaters’ to repent. 

Employment lawyer Josh Bornstein expected more people to be sacked over Twitter posts

Employment lawyer Josh Bornstein expected more people to be sacked over Twitter posts

Mr Bornstein said social media clauses in employment contracts deprived employees of their freedom outside of work.

‘They are cast in very broad language which basically requires an employee to be on their best behaviour at all times on a 24-7 basis,’ he said.,

‘If you are caught swearing on a tram or being unreasonable in an argument with someone and that’s captured on iPhone, then technically you could be breaching your employment contract.’

In the wake of the Folau saga, Mr Bornstein called for the federal government to amend the Fair Work Act so no one could be sacked over social media posts that were unrelated to their job and didn’t advocate illegal activity or violence. 

Angela Williamson was sacked by Cricket Australia last year for criticising on Twitter Tasmania's lack of abortion procedures in public hospitals

Angela Williamson was sacked by Cricket Australia last year for criticising on Twitter Tasmania’s lack of abortion procedures in public hospitals

‘The only way to address that reach is to introduce laws which start to address that problem in employment contracts. There are no laws that properly do that,’ he said.

SACKED FOR SOCIAL MEDIA POSTS

Roz Ward: the co-creator of the Safe Schools program was suspended in June 2016 from La Trobe University for a Facebook post describing the Australian flag as racist. She had posted an image of the rainbow flag next to the caption: ‘Now we just need to get rid of the racist Australian flag on top of the state parliament and get a red one up there and my work is done’

Angela Williamson: the Hobart woman was sacked last year from Cricket Australia for tweeting a series of criticisms about the Tasmanian Liberal government’s reluctance to provide abortions in public hospitals

Scott McIntyre: the journalist lost his job as an SBS sports reporter in 2015 after criticising Diggers on Anzac Day. His series of tweets had described war veterans as murderers, rapists and thieves.

‘Remembering the summary execution, widespread rape and theft committed by these “brave” Anzacs in Egypt, Palestine and Japan,’ one of the tweets said.

Former prime minister Malcolm Turnbull, when he was still communications minister, lobbied SBS to sack the reporter 

‘Instead, we see occasionally a case like we’re seeing with Israel Folau where an employee is relying on anti-discrimination law to say the contract is effectively been used to breach anti-discrimination provisions.’

Mr Bornstein said social media clauses in employment contracts encouraged vigilantism on social media, where companies were pressured to sack staff over social media posts.

‘They often target that person’s employer and put pressure on their employer,’ he said.

‘It encourages vigilantism. Instead of the organisation having the spine to say,”It’s not a matter for us, go away” they capitulate and sack the individual.’

He blamed companies being obsessed with brand management ‘a concept which is very easily invoked and completely impossible to actually scientifically measure’. 

‘The words “brand damage” are used frequently and I think misused frequently because organisations which claim a risk or actual brand damage often continue to flourish like our banks,’ he said.

Mr Bornstein, who has also represented trade unions, said social media post-inspired sackings didn’t just affect cultural conservatives like Folau.

‘We’ve got left-wing vigilantism and right-wing vigilantism. So you destroy their livelihood.’

Since Monday, the Australian Christian Lobby has raised more than $2.1million to fund Folau’s legal fight against Rugby Australia in the Fair Work Commission.

This is almost triple the $765,000 he raised through Go Fund Me before the American crowd funding site shut him down. 

Scott McIntyre was sacked an SBS sports reporter four years ago over a series of Anzac Day tweets describing Australian Diggers as murderers, rapists and thieves, following pressure from former prime minister Malcolm Turnbull

Scott McIntyre was sacked an SBS sports reporter four years ago over a series of Anzac Day tweets describing Australian Diggers as murderers, rapists and thieves, following pressure from former prime minister Malcolm Turnbull

Read more at DailyMail.co.uk


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