THE invention and adoption of mainstream social media can be seen as one of the great achievements of the 21st century. It has allowed us to connect virtually with anyone, from the neighbour down the street to someone on a different continent separated from us by vast oceans.
However, social media has also been used as a convenient way for users to instantly send offensive messages or to harass people. This can impact multiple parties – the person who made the offensive post/comment can sometimes have his personal information, including his employment details leaked online by “netizens”. This then impacts the employer, and in certain situations, a boycott of the employer’s products/services may be threatened if the employer does not take action or dismiss the alleged wrongdoer.
In such situations, there are several avenues of action available to the employer. While as a general rule, an employee’s activities outside working hours are not controlled or limited by their employer, this comes with certain qualifications.
Under Section 233(1)(a) of the Communications and Multimedia Act 1998 (CMA), a person commits an offence if he knowingly makes or creates any comment, suggestion or other communication which is obscene, indecent, offensive in character, etc, with the intent to annoy, abuse, threaten or harass another person. Such offence will also apply to making offensive comments and/or posts on social media; and in recent times, several people have been charged with such offences in Malaysia. Conviction can result in a fine or a jail term not exceeding one year.
If an employee is found guilty of committing such offence under Section 233(1)(a) of the CMA, the employer will have just cause to terminate his employment. It has always been the employer’s right to terminate the employment of an employee who has been convicted of a crime, regardless of whether that crime was committed during working hours or otherwise. The employer will also have the right to summarily dismiss the employee in such situations, meaning that the employer may dismiss the employee without needing him to serve his notice period.
Where the employer discovers that the employee has published offensive or insulting social media posts (whether related to the organisation or not) but the employee is not charged with or found guilty of the offence under Section 233(1)(a) of the CMA, the employer may take disciplinary action against or dismiss the employee as long as the employer had reasonable grounds to believe that the employee had committed the misconduct.
It is clear that an employer may take disciplinary action against an employee who publishes social media posts criticising his employer/the organisation on social media, as this would amount to an act of insubordination by the employee.
Where the employee has published offensive social media posts against a third party, the employer may take disciplinary action against him on the grounds that he is bringing the employer’s reputation into disrepute. However, whether a dismissal is warranted would depend on multiple factors such as the severity of the language of the post, the number of posts made and whether the posts were subsequently deleted. If the social media post was made using the employer’s property such as a work laptop or phone, it could constitute a misuse of company property and thus be considered as misconduct.
Employers who want the option of taking disciplinary action on grounds that an employee’s social media postings are obscene, indecent, or offensive in character, and who want to reduce the likelihood that the outcome of such disciplinary proceedings is found to be unfair, should implement a company social media policy. This policy should specify the rules surrounding employee social media postings and the possible disciplinary action that may be taken if the policy is breached. The same can be included in their Employee Handbook, if such a document is available.
This is so that the employer may base any disciplinary action on a breach of such policy. The punishment for such misconduct should be set out as well, for example it would result in a warning on the first misconduct, with a more severe penalty for further misconduct of the same kind.
The employer should bring such policies to the employees’ attention via email or by conducting an information session with all employees. This is to avoid any claim of ignorance by the employees.
Ultimately, employees should be cautious about what they post online.
It is always recommended that employers consult legal professionals before drafting any company social media policy, and it is especially important to do so in the event any employee is accused of posting offensive social media posts.
This article was contributed by Mitchel Chan of Christopher & Lee Ong.
Source: The Sun Daily
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