Friday, 24 May 2019

Case Spotlight: Quitting your Company’s WhatsApp Group

by Donovan Cheah (Partner) and Natalie Ng (Pupil in chambers) (Donovan & Ho)
www.dnh.com.my

This article was first published on Donovan & Ho's website on 6 May 2019.


Thinking of quitting your company’s WhatsApp group? Think twice as this may be legitimate grounds to fire you.

In this article, we examine the recent Industrial Court decision in Thilagavathy A/P Arunasalam v Maxis Mobile Sdn Bhd (Award No. 1050 of 2019, 27 March 2019), which involved an employee who was dismissed for quitting the company’s WhatsApp group without their superior’s permission.


Brief Facts


  • The Employee was employed as an Executive Sales & Services in the Company and it was a common practice for the Company to create WhatsApp Groups for ease of communication between employees.
  • Two WhatsApp groups were created by the Head of Branch at the time of the Employee’s employment: one for all employees and another one which included Managers and Supervisors.
  • The Head of Branch informed all his employees that they will have to let him know if they intend to exit the WhatsApp Group.
  • The Employee exited the WhatsApp Group without permission and was warned not to repeat it again. However, despite the warning, the Employee sent a message stating that she would exit the WhatsApp group during her holiday and subsequently exited the WhatsApp Group.
  • When the Employee was questioned about her exit from the WhatsApp Group without approval, she replied that she was not aware that approval was required and her exit was not a breach of Company policy.
  • At the same time, the employee had failed to submit her sales and service reports on time, despite repeated reminders.
  • As a result of the above, the above, the Company dismissed her. She filed a claim of unfair dismissal.


Court’s findings


  • The Employee knew that WhatsApp was used as an official form of communication and was aware that approval from the Head of Branch was needed before exiting the WhatsApp group. As such, her action in exiting the WhatsApp Group without notifying her superior was a misconduct since it was in violation of the express instructions of her superior.
  • By refusing to follow the instructions of the Head of Department, the Court found that she was in breach of her terms of employment with the Company.
  • In order to find an appropriate punishment for the Employee, the Court had to consider the past record as a relevant consideration. The evidence adduced during trial showed that the Employee was also facing other performance issues such as failing to submit her sales and service report on time, even after she was repeatedly asked to do so by her supervisor. She had a disciplinary record, including receiving a warning in the past for exiting the WhatsApp Group without permission. She had also previously sent abrasive and rude messages to her superior.
  • The Court found that the Employee’s disobedience and insubordination to her superiors warranted a dismissal as she breached the implied duty of mutual respect and also caused disruptions to the teamwork and cooperation at the workplace.
  • As such, the Industrial Court dismissed her claim for unfair dismissal.

Takeaways

At the surface, quitting your company’s WhatsApp Group may not seem like such a serious issue. However, in situations where the Company uses WhatsApp as an official form of communication and where employees have received explicit instructions about the WhatsApp group, intentionally disobeying such instructions may amount to misconduct severe enough to warrant dismissal. In other words, it is not for the employee to ignore or disobey their employer’s lawful instructions on the basis that the instructions are not practical, efficient or reasonable.

Here, the Industrial Court also took into account the employee’s past record. Factors such as the employee’s attitude and language would also be considered, as well as repeated acts of defiance or the refusal to cooperate with superiors. As such, even a “simple” act such as quitting a group chat may warrant dismissal when all circumstances are taken as a whole.

Employees are advised to respect the authority of their superiors and are required to comply with lawful instructions of their employers. It is not for the employee to decide on the reasonableness of the instructions, otherwise, it would be impossible for any employer to manage their workforce. In dismissing the Employee’s claim for unfair dismissal, the Industrial Court observed:
“The Company… [is] entitled to give all reasonable and legal directions regarding the manner in which the work of the establishment should be conducted and if their directions are flouted and workers such as the Claimant behave in an insubordinate manner, then the proper functioning of the establishment becomes impossible, and therefore such obedience or insubordinate behaviour is a serious misconduct…”

This article was written by Donovan Cheah with assistance from Natalie Ng (pupil in chambers). Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific 2017, 2018 and 2019, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.
Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

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