Tweets, Posts, and Pink Slips: The Employer’s Dilemma of Handling Off-Duty Conduct

Recently, the controversial dismissal of a teaching assistant in British Columbia, who shared seductive images and videos on various platforms, including an adult-oriented website like ‘OnlyFans,’ brings attention to the ongoing conflict between an employee’s duties and responsibilities to their employer, even when participating in activities outside of work hours.

In Malaysia, the general rule is that the conduct of an employee outside the office and/or outside office hours is within his private domain as per Lee Kim Yun v. Contra Enterprise Sdn Bhd [2004]. However, this of course comes with certain exceptions.

Landscape in Malaysia – Termination Due to Online Conduct

Section 233(1)(a) of the Communications and Multimedia Act 1998 (“CMA”), states that a person commits an offence if he/she knowingly makes or creates any comment, suggestion or other communication which is obscene, indecent, offensive in character, and etc with the intent to annoy, abuse, threaten or harass another person (including offensive comments/posts on social media).

Where an employee is found guilty of committing such an offence under this provision, the employer will have just cause to terminate the employee. Reason being that, an employer always has the right to terminate an employee who has been convicted of a crime (whether or not it was committed during/outside working hours). Nonetheless, it is less straightforward when the matter falls outside of this specific circumstance.

Overstepping Boundaries: A Clear Nexus between the Conduct and the Job

Mohd Hafizul Bin Abdul Rahin v. Malaysia Airlines Berhad (Award No. 220 of 2021)

Facts:

• The employee did not refute engaging in the act of posting on the social media platform Facebook. Allusions were drawn to the Company’s managerial personnel as “lembu” (cows), insinuating their lack of competence and professionalism.
• MAB put forth an allegation that the Claimant had detrimentally impacted their standing, subsequently leading to his termination on the grounds of severe misconduct and violation of both the Company’s HR Corporate Policy and the Group Code of Business Conduct.
• The Claimant asserted that the content was shared during his personal time, outside of official working hours, and without utilising the Company’s internet resources. Therefore, he posited that his actions did not violate the established policies.
• Additionally, the Claimant contended that MAB lacked substantive evidence to demonstrate that they had incurred irreparable harm as a direct consequence of the Claimant’s online posting.

Held:

• The provision outlined in Section 6.8(3) of the Company’s HR Corporate Policy articulated the following: “An employee’s responsibility to uphold confidentiality and exhibit loyalty to the Company while utilizing Social Media remains applicable beyond official working hours and in non-workplace settings.” This standpoint directly contradicted the Claimant’s belief that he did not violate the policy, serving as a conspicuous manifestation of his misconduct.
• Defamatory remarks uttered by an employee directed towards their employer serve as an indication of both insubordination and misconduct, warranting grounds for the employee’s potential dismissal.
• The Claimant had subjected MAB to the potential “vulnerability of becoming a target of mockery and derision.” By taking such actions, he had undermined the standing and credibility of MAB, and violated the shared reliance and assurance vested in him as an employee. Consequently, this constituted a grave instance of misconduct, justifying the decision for dismissal.

Key Takeaways:

While employees retain the liberty to articulate their opinions on their individual social media channels, it is imperative to bear in mind 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. Consequently, an employee might be held accountable for conduct on social media beyond working hours under the following circumstances:

1. It is likely to cause serious damage to the relationship between the employer and employee;
2. It damages the employer’s interests; or
3. It is incompatible with the employee’s duties as an employee.

According to the IDS Employment Law Brief (2012) whether such conduct amounts to serious misconduct will be determined on a case-by-case basis. The court may consider the following factors:-

• nature of the employee’s job;
• employee’s seniority within the company;
• seriousness of the alleged misconduct;
• nature of the employer’s organisation;
• terms of the employer’s social media policy;
• disclosure of any confidential information;
• risk of reputational damage to the employer;
• likely impact on the employee’s job and
• any mitigating factors, such as the employee’s service
• record, cooperation during the disciplinary proceedings.

The 21st Century Workplace Demands for Social Media Policies

The realm of the ‘workplace’ has been significantly broadened by the ongoing proliferation of social media. Consequently, the establishment of a comprehensive social media policy that precisely delineates acceptable behaviours both within and beyond official working hours is of paramount importance. The company’s policy could include the suggestions stated below (the list is non-exhaustive). However, it may be drafted, employers should essentially deliver a clear message to employees; “Don’t uncouthly talk about work online; if you do, your job may be on the line.”

• Prohibition on the disclosure of the employer’s confidential information or trade secrets.
• Prohibition on derogatory, discriminatory or defamatory comments on customers, suppliers, employees, and superiors;
• Prohibition on the unauthorised use of company logos, images and trademarks;
• Prohibition against employees holding themselves out as speaking on behalf of the employer, unless authorised in writing;
• Notification that a breach of the guidelines, may result in disciplinary action; and
• The employee’s obligation of confidentiality and loyalty towards the Company when using the social media, extend beyond work hours and outside of the workplace.