In an era where social media shapes our personal and professional landscapes, its impact on employment can be profound. 

Whether it’s discontented employees airing grievances online or individuals being spotlighted for off-duty conduct, the repercussions can often lead to disciplinary measures within the workplace.

Freedom of speech vs Employer’s legitimate interest

Although Malaysian citizens have the freedom of speech and expression (Article 10 of the Federal Constitution), there is a need to balance this right with the legitimate interest of the employer to preserve employees’ discipline and the employer’s reputation. 

Employees also have an implied duty to not behave in such a way so as to prejudice or damage the interests and reputation of their employer.

Employees’ common defences

Defences that the employee’s social media posts are private, or that the posts or comments were made in a private online forum are usually rejected. Among other things, posts from private forums can still be screenshotted or shared to the public [Farahtina binti Kassim & Anor v Malaysian Airline System Berhad [2018] ILJU 88].

Although employees sometimes do not name their employers in their posts, the Courts have held that the power of social media is such that there is a presumption that third parties would know who the employees were referring to [Ng Seok May @ Angie Sabrina v Maxis Broadband Sdn Bhd [2020] 2 ILJ 3].

Where the employee has defamed or attacked their employer online, they cannot shield themselves behind their union status [Kumpulan Sua Betong Sdn Bhd v Maruthan Kuppusamy [1996] 2 ILR 1594]. There is also no requirement that the employer must have filed a defamation suit against the employee before dismissing the employee for the defamatory post [Farahtina binti Kassim (supra)].

Aggravating Factors

Where the employee’s social media posts contain vulgarities, it would aggravate the seriousness of the misconduct [Shamani Devi Chendra Chekheran v Shangri-La Hotels & Resorts [2017] 4 ILR 273]. 

The employee’s response when confronted is crucial. In Mohd Azizi bin Sohan v Asian Kitchen (M) Sdn Bhd [2017] 4 ILJ 376, the employee was apologetic of his behaviour when confronted by his employer and the Court held that although his Facebook posts amounted to a misconduct, it was not serious enough to warrant his dismissal. 

If the post went viral, it could further aggravate the seriousness of the misconduct. In Syed Naharudin Syed Hashim v Etiqa Takaful Berhad [2019] 1 ILR 198, the employee was exposed online by an undercover journalist team for allegedly sexually grooming underage girls. This video went viral on Youtube. The Court rejected his defence that the misconduct was done outside of working hours and his employer was not identifiable from the video. The Court held that the power of social media is such that despite his face being blurred in the video, the public would still have known where he worked. The fact that he held a senior management position also aggravated the seriousness of his misconduct as it was incumbent on a senior employee to safeguard the reputation of his employer.

In Mohd Azmin Mohd Tamin v Malaysia Airline Berhad [2019] 2 LNS 1093, the employee was a security officer in KLIA. He took a video of the CCTV footage of an accident in the company’s premises and shared it in a private WhatsApp group, which was then leaked to the public via Facebook and TV3. Although this was his first misconduct after serving his employer for 17 years and he was remorseful, the Court held that given his years of experience, he should have known that the CCTV recordings were confidential material. Further, at that time, his employer was trying to rebuild its image after the MH17 and MH370 incidents. His misconduct was therefore made more serious due to these surrounding circumstances.

Key Takeaways

The allure of social media as a platform for personal expression must be balanced with the potential consequences it holds in the professional sphere. Even with privacy settings, the reach of a post can transcends boundaries, putting employees at risk of facing disciplinary measures or termination.

Public conduct is under constant scrutiny. Instances of inappropriate behaviour, even when unrelated to work, can draw attention, with viewers tagging employers and calling for repercussions. While our analysis may not directly address these specific scenarios, the trend suggests that actions reflecting poorly on an employer, especially when widely circulated, could lead to severe consequences for employees.

In navigating this landscape, a prudent approach is crucial: type with caution and reflect on potential ramifications. In some situations, the best approach may be to refrain from posting all together, as not everything needs to be online.

Thoughtful consideration before actions can mitigate the risks associated with social media and its impact on professional life.

***

This article was written by Sabrina Chang (Associate) from Donovan & Ho’s employment law practice. 

Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations.  Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.

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