Why Employees Should Mind What They Post on Social Media
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One of the great triumphs of the twenty-first century is the invention and widespread adoption of social media. It has enabled us to virtually connect with anyone, from our next-door neighbour to someone on another continent distant from us by enormous oceans.
However, users have also utilised social media as a quick and easy tool to convey nasty remarks or harass others. It can have far-reaching consequences: the person who posted the insulting post/comment may have their personal information and employment information disclosed publicly by "netizens."
This has an influence on the employer, and in some cases, if the company does not take action or terminate the alleged perpetrator, the public may threaten a boycott of the company's products or services.
Know the law
In such circumstances, the employer has several options. While an employee's actions outside of working hours are generally unrestricted or uncontrolled by their company, there are certain exceptions.
According to Section 233(1)(a) of the Communications and Multimedia Act 1998 (CMA), a person commits an offence if they knowingly make or create any obscene, indecent, offensive in character, etc. comment, suggestion, or other communication with the intent to annoy, abuse, threaten, or harass another person.
Making disrespectful remarks or posts on social media will also be considered an offence, and recently, several people have been charged with similar offences in Malaysia. A conviction can result in a fine or a one-year prison sentence.
If an employee is found guilty of committing a prohibited act under Section 233(1)(a) of the CMA, the employer has just cause to fire him. An employer has the right to fire an employee convicted of a crime, regardless of whether the act was done during working hours or not. In such cases, the employer will also have the ability to summarily dismiss the employee, which means that the employee will not be required to complete their notice period.
If an employer discovers that an employee has made offensive social media posts (whether related to the company or not), but they were not charged with or found guilty of the offence under Section 233(1)(a) of the CMA, the employer may discipline or dismiss the employee if they have reasonable grounds to believe the employee committed the misconduct.
It is apparent that a company may take disciplinary action against an employee who posts on social media criticising their employer/organisation, as this would be considered an act of insubordination by the employee.
The company may also take disciplinary action against the employee if they make insulting social media remarks against a third party, claiming that they are putting the employer's reputation into disgrace. However, whether a dismissal is warranted depends on a variety of variables, including the harshness of the post's language, the number of posts made, and whether the posts were later deleted.
If the employer's property, such as a work laptop or phone, was used to make the social media post, it might be regarded as a misuse of business property and thus be considered misconduct.
Disciplinary actions
Employers who desire the option of disciplinary action based on an employee's social media postings being vulgar, indecent, or offensive in nature, but don't want the outcome of those disciplinary processes to be ruled unfair, should create a company social media policy.
This policy should spell out the regulations for employee social media postings and the disciplinary measures that may be taken if the policy is breached. If such a document exists, it can be included in their Employee Handbook.
It is necessary as any disciplinary action taken by the employer can be based on a policy violation. The employer should also specify the punishment for such misconduct, for example, a warning for the first offence, with a more severe penalty for subsequent offences of the same kind.
The company should notify employees of such policies via email or hold an information session for all employees. This action is to prevent employees from claiming ignorance.
Employees should be aware of what they put online in the end. Employers, on the other hand, should always consult with legal specialists before developing any company social media policy, and this is especially crucial if an employee is accused of posting objectionable social media posts.