In the realm of business and marketing, social media has become an essential means for companies to reach customers, network, and grow their brand.  Social media can have a great influence over a company’s success, even to the extent of making or breaking it.

Considering this, does what an employee post in their “private” capacity on social media have negative implications on their employer? Situations like this have unavoidably blurred the boundary between public and private, and have forced employers to develop policies which caution against such acts.

It is therefore no surprise that the Court has had to consider the lawfulness of situations in which an employer has dismissed an employee over a post on social media. The Industrial Court in Mohd Hafizul Bin Abdul Rahin v. Malaysia Airlines Berhad (Award No. 220 of 2021, 10 February 2021) recently dealt with this issue.

Brief Facts

  • The Claimant was employed by Malaysia Airlines Berhad (“MAB”) as an Aircraft Technician.
  • On 31.05.2019, MAB issued a Show Cause letter to the Claimant, alleging that he posted an inappropriate and disparaging remark about the Company in a Facebook posting.
  • The post was a comment made by the Claimant on the Facebook page of former Prime Minister, Datuk Seri Najib bin Tun Abdul Razak.
  • In the comment, which the Claimant did not deny posting, references were made to the Company’s management as “lembu” (cow), carrying the insinuation they were incompetent and unprofessional.
  • MAB alleged that the Claimant had tarnished their reputation, and dismissed him on the grounds of serious misconduct and breach of the Company’s HR Corporate Policy and Company’s Group Code of Business Conduct.
  • The Claimant contended that the posting was done in his free time (outside work hours) and without the Company’s internet facilities, and he was therefore not in breach of the policies.
  • The Claimant also contended that MAB had no concrete evidence they had suffered irreparable damage as the result of the Claimant’s post.

The Court’s Finding

The Industrial Court dismissed the Claimant’s claim and held:

  • Clause 6.8(3) of the Company’s HR Corporate Policy stated: “Employee’s obligation of confidentiality and loyalty towards the Company when using Social Media, extend beyond work hours and outside of workplace.” This was contrary to the Claimant’s notion he was not in breach of the policy, and was clear indication of misconduct
  • Defamatory marks made by an employee against their employer is an indication of insubordination and misconduct for which the employee can be dismissed
  • The Claimant had exposed MAB to the “risk of being ridiculed and laughed at”. In doing so, he had compromised the reputation and integrity of the MAB, and breached the mutual trust and confidence placed in him as an employee, thus committing a serious misconduct warranting dismissal.


Key Takeaways

Although social media has developed into the platform of choice for employees to air out their grievances, it is not free of risk. Employers are now, more than ever, armoured with policies and rules against such behaviour. Hence, employees must be mindful of things said online in relation to work, and should instead address grievances directly with their employers.

As social media use is increasing rapidly, companies should therefore look into developing specific social media policies, so employees know what can and cannot be done.  Existing, conventional policies about misconduct may not necessarily apply to grey area situations such as online activity done outside office hours.

Here, it was helpful to MAB that their policy stated that it applied “beyond work hours and outside of the workplace”. This negated the Claimant’s argument he breached no policy if he did it on his own time and using his own resources. This is a good example of how a comprehensive policy can assist an employer when dealing with dismissal of employees.

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This article was written by Donovan Cheah with assistance from Chloe Tan (Intern). Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019, 2020 and 2021, 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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