Can employers actually dismiss you for something you said online, even when made carelessly? And does one ever really clock off from work? — Reuters pic

KUALA LUMPUR, Dec 23 — The recent sacking of a Honda staff over an insensitive remark made off-the-clock on Facebook has arguably got some Malaysians holding their tongues for fear of losing their jobs.

But some questions remain pertinent: Can employers actually dismiss you for something you said online, even when made carelessly? And does one ever really clock off from work?

To find out more, Malay Mail consulted several employment lawyers and thumbed through the country’s employment laws.

We found out that in Malaysia, local employment laws allow for such dismissal, even without a notice period. And this is especially so if the employee is considered to have committed serious misconduct, and subsequently hurt the company’s image.

When notice is not needed

Lawyer Donovan Cheah explained to Malay Mail that employers can dismiss employees without notice if the employee has committed what he called “gross misconduct”.

“Making racist statements may potentially be viewed as gross misconduct; for example, there is a reported Industrial Court decision where a few employees were dismissed for forwarding emails with racist and offensive content to other colleagues.

“The Industrial Court held that the dismissal was fair because the emails had the potential to cause detriment and disharmony among the company’s ethnically diverse workforce,” he said when contacted.

Lawyer VK Raj said that work dismissals typically follow a notice period of one to three months as stated in an employment contract, but said serious misconduct, such as stealing money or coming to blows with a fellow employee, would mean that the employer “can immediately dismiss him even though the contract provides for a notice period”.

Meanwhile, lawyer Vince Tan cited Section 14 of the Employment Act 1955 when noting that work termination over misconduct does not require notice, but said it should be justified with valid reasons.

Citing Section 20 of the Industrial Relations Act 1967, Tan said those who are dissatisfied with their sacking can file a representation with the director-general of Industrial Relations within 60 days of their dismissal, and to ultimately challenge the matter in the Industrial Court.

But how severe is ‘severe’?

Lawyer Balan Nair said an employee’s conduct that is viewed by the employer as something that may bring serious damage to a company financially or hurt its reputation “can form the basis for dismissal”.

For there to be a dismissal, Balan said the misconduct must have been so serious that it affects the fiduciary relationship of good faith between the employer and the employee — where the latter is expected to behave in a manner that would not affect the former’s trade or business.

Where an employee challenges his work termination, Balan said the courts will consider both how serious the misconduct is and whether the punishment of dismissal is proportionate to the misconduct.

“The courts have demonstrated their reluctance to agree to dismissal as being the sole solution to all allegations of misconduct.

“In most cases, the court tends to conclude that the conduct complained of is not serious enough to justify dismissal. Employers can suspend or issue a warning letter to the employees for their conduct instead of dismissing them outright,” he told Malay Mail when contacted.

While the Employment Act’s Section 14 permits an employee to be sacked without notice over misconduct, it also lists the alternative options of demoting an employee, or a maximum two-week unpaid suspension from work, or any other lesser punishment that the employer feels would be just and fit.

Malay Mail contacted the lawyers for comment, following two recent cases of employees losing their jobs over their widely-panned remarks online — Muhamad Edi Mohamad Riyars or “Edi Rejang” and the previously mentioned Honda staff — in a short period of within just a few days.

Not during office hours even?

For those who think they may be safe from repercussions over their remarks or actions that are done during non-working hours, that might not be the case.

In Edi and the Honda staff’s case, Balan said their alleged misconduct was not work-related, but done during their personal time.

“So this can be taken to court and challenged as to whether the employer can terminate an employee for things done outside office hours and unrelated to work,” he said.

As for Cheah, he said: “It is possible for employers to dismiss employees for misconduct committed outside working hours and outside the workplace, if that misconduct has damaged the employer’s reputation.”

Raj explained that a key criterion was whether the alleged misconduct outside office hours could be tied back to a person’s work or employer and be seen as affecting the company’s image, such as where an employee making a publicly offensive remark does so in an official capacity; while purporting to be speaking on behalf of the company; or while wearing a shirt with the company’s logo.

“While the law recognises an employer’s right to dismiss an employee for damaging the company’s reputation in public, the law equally protects an employee from wrongful dismissal for a matter that cannot be connected back to employment,” he said, noting that this would depend on the facts and whether the employer can show proof of reputation being affected.

Raj cautioned against allowing public sentiments to determine whether a person should lose his job over his remarks such as in the case of Edi Rejang, noting that whether a statement was publicly offensive and whether it was related to an individual’s work matter should be treated separately.

“You can’t go to the court of public opinion to find out whether his employment should continue or not,” he said, warning of the slippery slope where the public could demand retraction of privileges as a Malaysian or even citizenship.

“There’s a danger when you go to the court of public opinion — you’ll be driven by herd mentality — so it’s best left to a court of law to investigate whether a dismissal is appropriate or not.

“Because an employer will always have a reason and it’s for the court to decide whether the reason is valid or not,” he said.

Noting that the abuse of the right to freedom of speech such as by stoking racial or religious tension would be against the Penal Code, Raj argued that such matters should be treated separately and left to authorities to deal with.

Not as clear cut as it should be

Raj stressed that no one could prejudge if a dismissal was wrongful or lawful, as the Industrial Court would have to consider all the facts and circumstances surrounding each individual case when deciding if a dismissal was justified and proportionate to the severity of the misconduct.

Cheah also said: “Ultimately, whether a dismissal is lawful will depend on various factors such as the severity of the misconduct, the seniority/position of the employee, and the impact on the employer. There is no ‘one size fits all’ approach.”

Tan said the employment contract or company handbook should expressly state that hurting the company’s reputation would amount to misconduct, saying that an employee may succeed at the Industrial Court if the company fails to justify the dismissal by invoking the relevant term in the contract or handbook.

If the Industrial Court rules in favour of a sacked employee, Tan said a company which failed to justify the dismissal would under the Industrial Relations Act 1967 be liable to compensate the employee and pay back-wages.

“The employee can even get reinstated but this is very rarely done especially if the employee has found a new place of work,” Tan said.

“There is also a stigma that needs to be eliminated, which is employees are reluctant to file cases against their former employer in fear that they will not be able to secure a new job in the same field if they do so,” Tan said.

Raj said employees could challenge their work termination — regardless of whether it resulted from minor or major misconduct — to have the Industrial Court decide if it was wrongful, but said the matter would just end there if the sacked employee decides not to initiate a challenge.

As for how far the process can go on, Raj said those who are dissatisfied with the Industrial Court’s findings can contest it by filing for judicial review at the High Court, and subsequently appeal at the Court of Appeal, and even attempt to bring a further appeal before the Federal Court.