Introduction
Social media activity can be used as a ground for dismissal, as employers increasingly scrutinize the same, even those made after working hours or in private forums. While the Federal Constitution grants employees the right to freedom of speech, this right is not absolute and differs from freedom from consequences. The Industrial Court must often balance an employer’s managerial prerogative to discipline, with an employee’s right to express themselves.
A recent Industrial Court decision (Hyffny Bin Yusof V Airasia Bhd (Award No: 1676 of 2025 ) found in favour of an employee in such a scenario, holding that the dismissal was without just cause or excuse.
Brief Facts
- The Claimant was a cabin crew working for Airasia Bhd (“Company”).
- After experiencing a 12-hour flight delay where the cabin crew was allegedly left in an airport lounge without timely meals or hotel rooms provided to them, the Claimant posted about his frustrations on his personal and private Facebook and Instagram accounts:
“Sign On Yesterday at 0635,
Stranded at airport for more than 12 hours, back to base at near 0230,
Reached home almost 0300…
Add another 3hours to it will be like 24 hours.
None of the so called Exec’s (idiots to me) call & checked on our situation…!
We had to called & informed them on our situation.
No hotel given to us except stay at the airport Lounge & food provided after our Capt fight for us..
Kudos AA… Fatigue is not even qualified to describe us…!
Thanks & GOOD JOB to all crews & Tech Crews that was involve…! ”
- The Company contended that the posts were inappropriate, disparaged the Company, and violated internal policies relating to social media postings. The Claimant was eventually dismissed for misconduct.
Industrial Court’s Findings
This Court found that the Company’s policies were designed to curb conduct that causes actual harm to the Company’s reputation or operations. None of them expressly forbade private or personal remarks made outside working hours, unless those remarks disclose confidential information, defame the Company, or are calculated to cause injury. Their broad wording concerning “tarnishing the Company’s image” must therefore be interpreted purposively and applied only to conduct that demonstrably undermines the employer’s legitimate interests
The Court further found that the Claimant’s postings did not amount to serious misconduct, as they were a fleeting expression of frustration rather than wilful disobedience. To punish someone for expressing their genuine feelings (although the language used, such as referring to the Company’s executives as ‘idiots’, was unguarded) goes against the principles of industrial jurisprudence. Further, the Court found a distinction between a lapse of courtesy and insubordination, especially given that the Claimant did not identify or name any particular officer.
Since the Company could not prove that the Claimant’s postings resulted in any financial implications or reputational harm, the Court viewed them merely as private remarks made in frustration and irritation, and considered the realities of working life. No evidence was led to show that the posts were viewed beyond his private circle, nor was any complaint received from passengers, the public, or regulators. The Company’s case rested solely on unverified screenshots without establishing their source or extent of circulation. In the absence of proof of public dissemination or actual damage, the allegation of reputational injury was not substantiated.
The Claimant’s dismissal was found to be without just cause and excuse. However, because of the language used, the Court applied a 20% deduction on the total compensation awarded, for contributory misconduct.
Key Takeaways
Employers should consider the following when assessing whether an employee’s social media posting amounts to misconduct:
- Private expressions of frustration are not automatically misconduct. Social media posts made in an employee’s personal capacity, outside working hours and on private accounts, may not always justify dismissal unless they disclose confidential information, are defamatory, or are intended to cause reputational or business harm.
- Disciplinary action must be proportionate to the misconduct. Even where an employee’s conduct is inappropriate, dismissal will not be justified unless the misconduct is sufficiently serious. Fleeting or emotional expressions of frustration should not attract the most severe form of punishment, especially when there is no malice involved.
- Social media policies must be precise. Broadly worded policies may be insufficient to discipline employees for private conduct. Policies should clearly define prohibited conduct and must be applied consistently with principles of industrial jurisprudence.
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This article was written by Donovan Cheah (Partner) with the assistance of Ishantiny Raganathan (Pupil in Chambers) 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.
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