Case Spotlight: Fired for Facebook Comments

Author: Donovan Cheah (Partner) (Donovan & Ho)

www.dnh.com.my

Should an employee be held accountable for postings made on their personal Facebook account? The recent Industrial Court case of Roslan Ayob v Parkroyal Penang Resort & Ors [Award No. 444 of 2018, 27 February 2018] deals with this issue.

Brief Facts

• The employee was working as a Chef de Partie at Parkroyal Penang Resort (“Employer”), and also held the position of Secretary of the House Committee of the National Union of Hotel, Bar & Restaurant Workers, Peninsular Malaysia (“Union”).
• During a meeting with the F&B Captain of the Employer, the F&B Captain allegedly informed the Claimant that he (the F&B Captain) was assigned a work schedule that was in breach of the collective agreement between the employer and the Union.
• As fate would have it, the F&B Captain passed away later that day before the Claimant could raise the grievance with the Employer.
• The Claimant posted some comments on a Facebook page, which the Employer viewed as blaming the F&B Captain’s manager (“Manager”) for causing tremendous emotional pressure on the deceased, and instigating others to believe that the Manager was responsible for the F&B Captain’s death.
• A domestic inquiry was held and the Claimant was found guilty of misconduct. The Claimant was terminated and filed a complaint of unfair dismissal.

Findings of the Court

The Court dismissed the claim of unfair dismissal. In reaching its conclusion, the Court took into account the following:

• Since the Claimant’s Facebook comments, other employees were passing unwanted and hurtful remarks against the Manager.
• The Manager’s authority over his subordinates was observed to have been corroded subsequent to the Facebook comments.
• After the Facebook comments were posted, the Manager received several telephone calls accusing him of being responsible for the death of the deceased. The callers used words like “pembunuh (murderer), torturer, lelaki kejam (cruel man)”. The Manager feared for his life and had to lodge a police report.
• The Claimant was advised by the owner of the Facebook page where he posted the comments, not to make such provocative comments. Despite this advice, the Claimant persisted to make the Facebook comments.
• The Claimant admitted during his testimony that he did not know that it was not the Manager who prepared the work schedule of the deceased. As such, without knowing the truth, he made comments against the Manager which drew the ire of other employees.

The Court went on to hold:

“The comments were totally unnecessary and were in fact untrue allegations. The posting had brought about industrial disharmony at the workplace especially when the [Employer] is a service orientated industry. It also caused distress… The actions of the Claimant had seditious tendencies and this was displayed by the comments and slurs that were hurled at [the Manager]. This, the Court considers a serious case of misconduct….

In the circumstances, the Court is of the view that the termination as with just cause and excuse as no employee should make use of social media to cause industrial disharmony.”

Key Takeaways

Even though an employee may use social media to express their personal views, they should be mindful about whether such comments may cause disharmony in the workplace, especially if those posts are made public.  Employees should first consider whether there are better and more productive ways to raise their workplace concerns.

On the other hand, employers should not take this case as a right to automatically terminate employees for expressing views or grievances on social media. Employers still have a legal duty to ensure that any disciplinary action is proportionate to the misconduct committed and the effect on the company as a whole. In this particular case, the termination was warranted because the social media comments resulted in threats being made against another employee, among other things.