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Cost-cutting measures like salary reductions or deferments, unpaid leave and downsizing are becoming  more commonplace, as businesses seek to deal with the challenges arising from COVID-19 and the Movement Control Order (“MCO”).  On social media, we have seen employees who have published their employers’ internal memorandums or policies on cost-cutting measures. These postings are usually accompanied with negative remarks about the employer’s decision to cost-cut, often with the suggestion that the employer has violated employment law, which can be defamatory if such statements are untrue.

 

What happens when an employee posts negative remarks about their employer on social media?

In this article, we discuss the recent case of Kamal Rafidi Mohd Zakaria lwn Alam Flora Sdn Bhd [2019] 2 LNS 2219 where the Employee was dismissed for making defamatory remarks about the Company on Facebook.  While the facts don’t relate to cost-cutting measures, this case is an interesting analysis on how the Industrial Court will look at defamatory remarks made by employees.

Brief Facts

  • The Company received a complaint from one of its employees pertaining to a Facebook post of a picture of a Certificate of Achievement from SWCorp with the following caption “Buat hal msh dimuliakan… kerana dipayung oleh exco..” that was posted under an alias account called “Kent Zak”.
  • Unofficially translated, the caption meant “even though this person has caused problems, he is still being glorified… all because he is being supported by EXCO”.
  • Although the name on the Certificate was redacted, the identity of the employee who received the Certificate was obvious as there was only 1 recipient of the Certificate for that district in 2016/2017
  • Upon an investigation conducted by the Company, it was found that the “Kent Zak” account belonged to the Claimant.
  • The Company conducted a domestic inquiry and alleged that the Claimant’s conduct in posting the Facebook post with the said caption had tarnished the reputation of the Company and defamed the Company. In addition, the Company alleged that the Claimant had committed a misconduct and had breached the Company’s standard operating procedures.
  • The Claimant was subsequently dismissed by the Company. He filed a claim of unfair dismissal.

Court’s Findings

Although the Employee pleaded the defence of fair comment, the Industrial Court decided the caption was defamatory to the Company as it carried the following connotations:

  • That the recipient should not have received the Certificate and was an irresponsible and undisciplined employee
  • That the EXCO of the Company was biased.
  • That the EXCO of the Company had protected the recipient of the Certificate despite his wrongdoings.
  • The Certificate that was awarded by the concessionaire, SWCorp, had a lack of credibility.
  • SWCorp chose to award the Certificate to an individual who has questionable integrity due to the EXCO’s bias.

Recognising that the Claimant has a right to freedom of speech and expression under Article 10 of the Federal Constitution, the Industrial Court opined that this freedom of speech and expression is not an absolute right and this right cannot be misused to defame any individual or entity.

As a result of the above, the Industrial Court decided that the Employee had committed a misconduct. The Industrial Court dismissed his claim for unfair dismissal.

Key Takeaways

The above case demonstrates that an employee’s private posts on social media can result in dismissal if it damages the reputation of the Company.

As observed by the Industrial Court in Farahtina Kassim & Anor v. Malaysian Airline System Berhad [2018] 2 LNS 1209 :

“In this current fast-paced information technology era, it would not be amiss to state that a social media posting could be deadlier than even the mighty pen and sword put together”.

Though employees are allowed to have the freedom to express their thoughts on their respective social media platforms, it is important to remember that employees also have a duty to be trustworthy and to act in a way to be consistent with the faithful discharge of duties to the employer.

Further, posting or sharing internal documents such as company policies, memorandums or employee communication, may amount to a breach of confidentiality, which could warrant legal action being taken against the employee.

While these are stressful times and employees are facing many uncertainties about job security and their livelihood, they should still be mindful of what they post on social media, to avoid any untoward consequences to their employment.

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This article was written by Donovan Cheah and Natalie Ng. Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017, 2018 and 2019, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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