The rise of digital technology has led to an increased utilisation of instant messaging platforms such as Whatsapp or Telegram groups by employers as efficient tools for communication and scheduling. While this facilitates the streamlining of certain business operations, it also introduces employers to novel legal complexities.
So the simple questions are (1) whether an employer is able to terminate an employee for leaving the company’s WhatsApp group without informing their superiors; and (2) whether removing an employee from a Company WhatsApp group could amount to a dismissal.
Exiting the Company Group Chat: Insubordination and Potential Termination
Summarily, exiting a company WhatsApp Group could be considered insubordination if it is within the Company policy and one has been continuously warned by supervisors not to do so.
Thilagavathy A/P Arunasalam v Maxis Mobile Sdn Bhd (Award No. 1050 of 2019 – 27 March 2021 [Court Of Appeal])
Facts: Thila served as a Sales and Services Executive at Maxis, where part of her responsibilities included sending daily sales and service reports to her branch manager through WhatsApp. Subsequently, she was included in two WhatsApp groups — one consisting of Managers and Supervisors, and the other comprising all other employees. The Head of Branch explicitly communicated to all staff members that they were required to inform him if they wished to exit any company WhatsApp groups.
Nevertheless, Thila exited one of the WhatsApp groups without obtaining permission from her superiors. In her defence, she claimed ignorance of the company policy mandating notification to her branch manager. The branch manager issued a warning since it was her first time. However, she repeated this again and this time she departed both company WhatsApp groups, notifying a group chat (excluding her manager) about her holiday plans and need for a break from work. Additionally, she failed to submit Daily Sales and Services reports for several days.
Maxis dismissed her for misconduct and an uncooperative attitude towards the company.
Held: The Industrial Court determined that the dismissal was justified based on the following reasons:
- The Respondent intentionally left the Maxis Centre E-Curve WhatsApp Groups in December 2014 and then again in February 2015. The Company presented sufficient evidence to establish that the Respondent was aware of the requirement to obtain her supervisor’s approval before leaving these WhatsApp Groups and failed to secure this approval.
- By deliberately exiting the WhatsApp Group for the second time, the Respondent violated the terms of her employment with the Company by not adhering to reasonable instructions from her supervisor, whether oral or written.
- The Respondent had a responsibility to send the Day End Sales and Service Report to her supervisor, which she neglected to do on multiple occasions.
- The overall behaviour of the Respondent demonstrated a deliberate refusal to comply with lawful orders from her superior. Her persistent defiance and lack of cooperation with her supervisor constituted acts of insubordination and indiscipline, eroding the Company’s trust and confidence in her.
Key Takeaways
- Leaving your company’s WhatsApp Group might not appear to be a significant matter. However, when the company utilises WhatsApp as an official means of communication and employees have received explicit instructions regarding the group, intentionally disregarding these instructions can be viewed as a serious breach of conduct that could result in dismissal.
- Employees cannot simply disregard their employer’s lawful directives under the pretext of impracticality, inefficiency, or unreasonableness.
- The Industrial Court also considered the employee’s past behaviour, taking factors like the employee’s attitude and language into account, as well as any instances of repeated defiance or a refusal to cooperate with superiors.
- Therefore, even a seemingly “minor” action such as exiting a group chat may lead to dismissal when all relevant circumstances are considered.
- Employees are strongly advised to show respect for their superiors’ authority and are obligated to adhere to their employer’s lawful instructions.
- It is not the employee’s prerogative to judge the reasonableness of these instructions; otherwise, it would be impossible for any employer to effectively manage their workforce.
“Does Removing an Employee from WhatsApp Equate to Constructive Dismissal?”
At this point in time, there is no authority confirming whether removing an employee from a company WhatsApp group chat would amount to dismissal. Nonetheless, in other jurisdictions such as in Australia; a recent ruling by the Fair Work Commission (FWC) determined that excluding an employee from a WhatsApp group responsible for shift allocation amounted to a termination initiated by the employer. This marks the second instance of such a decision in the past few months.
Aligning this to the Malaysian Law, a series of actions which were calculated to drive the claimant out of his job would tantamount to the company’s repudiation of essential terms of the claimant’s contract of employment – constructive dismissal (Kumpulan Sepang Utama Sdn Bhd v. Lam Chee Chai).
Employers should be mindful that; “any conduct that makes it practically impossible for employees to complete their work could be construed as a dismissal.”
