Malaysian employment law issues arising from using work e-mails or company internet for personal use

Using work e-mails or company internet for personal use : right or wrong?

In 2011, three employees were dismissed from Telekom Malaysia on the grounds that they had, in violation of the company’s IT policy, used their work e-mail accounts to forward potentially offensive and racially sensitive e-mails to other employees. Aggrieved by their dismissal, these employees subsequently filed complaints of unfair dismissal against the company. The Industrial Court in 2013 upheld the dismissals and found that it was done with “just cause and excuse”. The Court’s decision is reported in Selvamohan Gopal & Others v Telekom Malaysia [2013] 1 MELRU 1.

The Court’s decision is noteworthy as it addresses several important issues when it comes to the use of work e-mails and company internet for non-business related purposes:

1.                 Internet use must be responsible. The Court acknowledged that the use of e-mails, Facebook and even Instagram may allow companies to be more competitive and be run more efficiently. However, employees have a responsibility to use those resources in a manner that does not detriment the company’s interests, violate the law, or infringe the privacy of other employees.

2.                 Companies should have an IT policy.  The Court found that if a company has an IT policy regarding the use of e-mails and the internet, employees are obligated to comply with that policy. Any failure to comply with those policies may justify disciplinary action.

3.                 … but enforcement of that IT policy must be reasonable. That being said, the Court made an interesting observation that “it is not reasonable for work e-mails to be used solely for business”.  The Court went on to say that practically, it is likely that employees would at some point or another use work e-mails or the Company’s internet services for personal e-mails or personal matters. What is important is for companies to look into the true intent of the e-mail / internet usage: usage that causes detriment to the company’s interests is likely to be misconduct, whereas more “innocent” usage should not be deemed as a violation of policy.

4.                 “Forwarding” e-mails is not a defence. In this case, the employees in question were not the authors of the e-mails which had the potentially offensive content.  They had merely forwarded the e-mail to other individuals. The Court held this alone was not sufficient as a defence as the Court is obligated to examine the whole of the circumstances. In this particular case, the content of the e-mail had the potential to cause misunderstanding and disharmony amongst the ethnically diverse workforce of the company. As such, the fact that the employees should still be held responsible for their actions in forwarding the e-mails, even though they were not the authors.

5.                 Actual detriment does not need to be proven.  The Court noted that the company did not adduce any evidence to show that pursuant to the e-mails, the Company had actually suffered detriment, or that the e-mails resulted in disharmony in the workforce. The e-mails were not circulated outside the company so there was no damage to the company’s reputation. In other words, the e-mails did not have any serious impact on the company or the company’s business. Notwithstanding the above, the Court still found the dismissal to be fair because of the potential of the e-mail to cause detriment and disharmony.

Much of the decision appears to be focused on the content of the e-mails, which the Company alleges were disrespectful of certain ethnicities. It is in this context that the Court upheld the employees’ dismissal.

A key takeaway from this case is that both employers and employees should practice the principle of proportionality when it comes to internet usage at work. Employees should not abuse the privilege of having internet access and ensure that their actions comply with the law, do not negatively impact their productivity and do not jeopardize the harmony and stability of their working environment. On the other hand, employers may want to think twice about going on a witch hunt against employees who use their lunch break to pay their bills online or catch up on memes.

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ABOUT THE AUTHOR. Donovan Cheah is a partner at Donovan & Ho. He is an advocate and solicitor of the High Court of Malaya, and his writings have been featured in publications like The Star, the American Chamber of Commerce updates, and Asialaw.

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