KUALA LUMPUR, Dec 23 — Could and should companies sack their staff over misconduct such as making racist or offensive remarks, when such actions are not done during office hours?

Malay Mail asked groups representing Malaysian employees and employers respectively, particularly in the wake of two cases where Malaysians reportedly lost their jobs over content posted publicly on Facebook.

What do trade unions say?

Malaysian Trades Union Congress (MTUC) secretary-general J. Solomon said all employees in Malaysia are not “slaves” and have a right to their opinion, but said the right to freedom of speech should not be abused and pointed out that there are sufficient laws for authorities to handle any abuse of the freedom.

Solomon argued that employers should not think that they own their workers, and said workers have dignity and the right to lead their own lives.

“If anything is done outside the workplace and outside office hours by a worker, employers do not have any right to take any action against the worker arbitrarily.

“Even though MTUC does not condone any worker inciting racism, but when it is carried out by the worker outside office hours, it must be the powers of the authorities to investigate and act upon it within the laws of the country,” he told Malay Mail yesterday when contacted.

“The employer has no right to assume the role of policing. Nor can the employer dictate and run the lives of workers outside the working hours.

“Employers cannot extend their terms of conditions outside the workplace and outside office hours,” he said, adding that MTUC would propose labour law reforms to the government to prevent abuses by employers of their role, and to ensure a balance of power between employers and employees.

What do employers say

Malaysian Employers Federation (MEF) executive director Datuk Shamsuddin Bardan acknowledged the right to freedom of speech, but said it is not a total freedom and has to be balanced against the interest of other parties such as the employer’s.

“If a company’s image is brought into disrepute, then the company can always take action,” he told Malay Mail yesterday when contacted, referring to the two cases as examples where the company’s reputation may be involved.

“Even if the misconduct is outside office hours, and outside company premises, it doesn’t really matter, the company can take action because it brings disrepute to company.

“Especially when you are talking about social media, when the person concerned will include where he or she works [in their social media account], so that is the connection,” he said, noting that it would be a different situation if a person uses a nickname on a social media account and the public is not aware of where they worked.

For social media platforms such as Facebook, a user’s workplace may not be immediately apparent from their posts or comments, but such details can be found in their profile if the user provides such details.

In terms of social media remarks by an employee that becomes the subject of a criminal case in court, Shamsuddin said employers may take action without waiting for the case’s outcome if they can show that the remarks have tarnished the company’s image.

“So the criminal case is a separate issue... the prosecution wants to prove this case beyond reasonable doubt. The company’s issue is only on balance of probabilities, which is a lighter burden of proof, and if they can show the company’s reputation has been affected, then no problem,” he said when explaining that the company could proceed to take action.

If an employee steals company property, companies could similarly take action against the employee without waiting for the court’s decision, Shamsuddin said.

“But of course, there are some cases where it doesn’t involve the company. For example, the employee concerned is caught stealing non-company property outside company premises.

“Say there’s a police report made by the owner of the property, the company can’t take action based on that. The company has to wait for a decision by court, then only can the company take action,” he said.

How is the process really like?

MTUC’s Solomon said it would be unlawful for an employer to dismiss an employee without proper inquiry and without providing opportunity for him to defend himself.

MEF’s Shamsuddin said a company could issue a show-cause letter to ask an employee to explain allegations of misconduct.

Based on the employee’s reply to the show-cause letter, the company could then either decide to take action such as issue a warning, suspension or dismissal; or proceed to hold a domestic inquiry if the response shows a need for further investigation, Shamsuddin said.

For a domestic inquiry on the alleged misconduct, it would typically be carried out by an independent panel, and is intended to allow the employee an opportunity to be heard.

“The important point is the employee should be given the chance to defend himself and hear the evidence against him and to also call his own witnesses if necessary,” he said.

At the end of the internal inquiry process that could take up to a few days, Shamsuddin said the panel will present its findings to the company on whether the employee had committed the wrongdoing, and the company would then decide on the appropriate punishment.

“Normally, if it’s major misconduct, it will warrant a dismissal,” he said, adding that such work terminations for serious misconduct would normally be summary dismissals or dismissals without notice.

“But sometimes, when the evidence is overwhelming, the employer may choose not to conduct any (domestic) inquiry and proceed to dismiss the employee. Of course, we give reasons for the dismissal,” he said.

Lawyers that Malay Mail spoke to also said employees can be sacked without notice for misconduct outside office hours, if it had resulted in the employer’s reputation being damaged.

Lawyer Vince Tan told Malay Mail that making public statements is part of the constitutional right to freedom of expression, which can, under the Federal Constitution’s Article 10(2), only be restricted by federal laws justified by reasons such as public order, morality or national security.

He listed these existing laws as including the Sedition Act 1948, Defamation Act 1957 and Printing Presses and Publications Act 1984.

Tan noted that some companies’ policies prohibit their staff from making unauthorised public statements, which he viewed as violating the freedom of speech, especially when the statements are issued in their personal capacity and/or are not work-related.

For the two cases, he noted that the individuals concerned were not acting in their capacity as an employee of their company.

“So now the question must be whether there is an express provision or policy which states they cannot behave in such a manner outside work.

“If not, they have a good case for dismissal without just cause or excuse,” he said, noting that they can initiate the challenge against their work dismissals within 60 days from the date of the dismissals.