Can Employees be Sacked over Controversial Comments?

The Malay Mail recently consulted with employment lawyers to find out if employers can dismiss their employees for what they post online, even if it’s not during office hours. Recently, an employee was terminated by her employer after making a controversial comment on her social media account. In November 2018, a man lost his job after a video of him insulting a beer promoter went viral.

In Malaysia, such dismissal is deemed legal according to the local employment laws. If the employee commits a serious misconduct (which hurts the company’s image), they can be dismissed without a notice period.

Dismissal without notice

Lawyer Donovan Cheah said that employers have the ability to dismiss employees without notice if the employee has committed a “gross misconduct”.

Citing an Industrial Court decision in which several employees were dismissed for forwarding racist and offensive emails to other colleagues, he said “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.”

According to lawyer VK Raj, work dismissals usually follow a one to three months notice period as stated in an employment contract. However, a serious misconduct gives the employer the ability to immediately dismiss the employee without a notice period.

Citing Section 14 of the Employment Act 1955, lawyer Vince Tan said that work termination over misconduct does not need any notice but it should be justified with valid reasons.

He also said those who are not satisfied with their termination can file a representation with director-general of Industrial Relations within 60 days of their termination and challenge the matter in the Industrial Court, citing Section 20 of the Industrial Relations Act 1967.

Severity of the misconduct

According to lawyer Balan Nair, an employee’s conduct that is perceived by the employer as something that could bring serious damage to a company financially or damage its reputation “can form the basis for dismissal.”

If the employee decides to challenge their work termination, Balan explained the courts will consider both the severity of the misconduct and whether the dismissal is proportionate to the misconduct. He said “Employers can suspend or issue a warning letter to the employees for their conduct instead of dismissing them outright.

Even though Section 15 of the Employment Act permits an employee to be terminated without notice over misconduct, it also provides alternatives such as demotion, maximum two-week unpaid suspension from work, or any other lesser punishment that is deemed just and fit.

Can employees be terminated over something they do outside office hours?

Balan said that if the alleged misconduct is not work related but done during their personal time, they can take challenge the matter in court to decide  “as to whether the employer can terminate an employee for things done outside office hours and unrelated to work.”

Cheah 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 main 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.

He cautioned that public sentiments should not determine if the person should be terminated over their remarks. If the misconduct involves the abuse of the right of freedom of speech (which is against the Penal Code), Raj said that such matters should be left to authorities to deal with.
 

A complicated matter

Raj said that it is up to the Industrial Court to consider all the facts and circumstances surrounding each individual case before deciding if a dismissal is justified or not.

He further explains that employees could challenge their termination (regardless if it’s resulted from minor or major misconduct) to have the Industrial Court decide if it was wrongful.

Cheah explained that a lawful dismissal depends on factors such as the severity of the misconduct, the seniority or position of the employee, and the impact on the employer. He further stated that there is no ‘one size fits all’ approach.

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

Further reading: What You Need to Know About Domestic Inquiry in Malaysia.