In this day and age, employees spend most of their time in front of their computers or electronic devices to carry out their work. We assume that most responsible employees would utilize their time chasing the never-ending deadlines of work life. However, there are still people sweating buckets at the thought of the management knowing about certain questionable websites visited during office hours.
Pornography addiction in Malaysia is on the rise due to easy access to the internet. In 2015, the Star newspaper reported that Malaysia was the 2nd highest country in South-East Asia in terms of time spent streaming pornography, with an average of 12.05 minutes per day in 2014. While the Malaysian Communications and Multimedia commission (MCMC) had barred access to more than 1000 pornographic websites since its inception in 2015, some employees have still managed to find crafty ways to bypass the virtual blockade and watch porn during office hours.
Can you get dismissed for watching or distributing pornography during work hours?
The answer should be obvious, but let’s examine how the Industrial Court has dealt with this issue.
In Jaya Balan Suppiah v Texas Instrument (M) Sdn Bhd [2013] 3 MELR 714, the Industrial Court held that viewing and transmitting pornographic images at the workplace is a serious misconduct which warrants dismissal. The employee’s termination in this case was held to be just, given that there were 18 e-mails tendered as evidence to show the distribution of pornographic material by the employee.
Similarly, the Industrial Court upheld the dismissal of a female probationer in Alpha Sigma Sdn Bhd v Renujeet Kaur [2001] 2 MELR 569. There was evidence (through the testimony of her colleagues) that she accessed pornographic websites during office hours and also showed obscene images to her colleagues.
That being said, the burden of proof lies on the Company to prove that the employee had committed the offence. If there is no evidence to support the charges against an employee, the dismissal may be considered unjust.
In Azami Ahmad v Bluescope Steel (Malaysia) Sdn Bhd [2009] 1 1 MELR 179, the Industrial Court found in favour of an employee who was dismissed for allegedly sending pornographic materials involving children to another employee’s e-mail account. While the Court agreed that storing and distributing pornographic material using company e-mail is a breach of company policy, the Court also held:
- The charges laid out against the employee for distributing and storing pornographic material on his computer were defective as there were no material particulars to support them (dates, time and company e-mail accounts involved in the offence was not stated).
- The company had failed to prove that the sixteen images which it had relied on to dismiss the employee were obtained from the employee’s computer. The company’s witnesses did not explain where they obtained the images from, and one witness even testified that they did not download those images from any of the Company’s computers.
- The employee did not have sole control over the use of his company e-mail account. Based on the factual circumstances of the case, it appeared that anyone could have used his computer to distribute the pornographic material. This was because the employee’s computer did not have an automatic log-out if left in idle mode.
- Some of the pornographic images from the e-mails were only obtained after the Employee was dismissed from the Company.
Given the evidentiary hurdle above, some employers have engaged experts to assist them in either retrieving deleted materials or tracking downloaded items. In Nazatultahar Md Dom v Motorola Technology Sdn Bhd [2016] 1 MELR 584, the Company engaged a malware forensic analyst to identify the employee’s computer IP address and the websites visited to show where the significant volumes of obscene material were downloaded.
Takeaways
Employers should consider having a computer or IT policy in place to govern the usage of company computers or electronic devices during office hours. The stipulation of a punishment (disciplinary action or termination) in the policy may further help employers decide on the next course of action if an employee is found guilty of accessing pornographic material during office hours. Employers can consider advising their employees that their e-mail and internet usage may be monitored, especially if it is on company devices.
Some employers also restrict certain websites from being used on company devices. This is not just limited to pornography and often include blocking “leisurely” websites such as social media or video streaming sites.
Pornography at the workplace isn’t an issue that just affects the employee who is accessing questionable material. If the pornography is distributed or sent to another employee this could also amount to sexual harassment. The impact of such actions can have a damaging effect on company culture and should be curbed immediately.
An employer places an almost unspoken trust on employees to conduct themselves in a professional manner during office hours. Abusing that right may result in one losing their job, and rightly so.
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This article was written by Donovan Cheah and Amirul Izzat Hasri (Senior Associate). 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.
