JUST few days ago, an employee from a bank was sacked over her a social media post on Facebook targeting the prime minister, who was depicted wearing a ‘pottu’ (a traditional dot worn on forehead by Indians) and a saree with a contentious design.
This incident serves as a stark reminder: what employees post online, even on their personal time, is not without consequences.
An employee’s social media activity can be grounds for dismissal even if it’s done after working hours. a clear “nexus” (link) is established between the employee’s post and the employer’s business (Also refer “Costly words, disharmony at work and beyond:
The 3Rs”, The Daily Express, 2nd September, 2025:
https://www.dailyexpress.com.my/read/6227/costly-words-disharmony-at-work-and-beyond-the-3rs/).
Employers should be able to show a clear link between that employee’s private conduct and actual harm to the company’s business or image.
Linking Private Posts to Employment Conduct – Nexus Test
The most common argument from employees is that their actions are not an employment misconduct as their social media posts were “off-duty conduct” or “on their private account.”
The Industrial Court has consistently rejected this argument when a clear “nexus” (link) is established between the employee’s post and the employer’s business.
In Farahtina binti Kassim & Anor v Malaysian Airline System Berhad [2018] ILJU 88, the Industrial Court acknowledged the reality that content from “private” accounts can be, and often is, screenshotted, copied, and widely disseminated. Once shared, it is no longer private.
The court here warned the damage a social media post can cause:
“In this current fast-paced information technology era, it would not be amiss to state that a social media posting could be deadlier than even the mighty pen and sword put together.”
Similarly, in Mohd Hafizul Abdul Rahim v. Malaysia Airlines Berhad [2021] 1 ILR 579, the claimant (ex-worker) insisted that he had only posted the comment during his “free time,” outside of working hours, and had used his own internet facility to do so.
Based on this, he contended that he had not breached the company’s Policy and Code. However, the company presented its HR Corporate Policy and the court paid close attention to clause which explicitly stated that an “Employee’s obligation of confidentiality and loyalty towards the Company... extend[s] beyond work hours and outside of workplace.”
The court found this clause to be decisive. It reasoned that since this obligation clearly extended beyond the office and the 9-to-5, the claimant’s notion that he was “off the hook” just because he wasn’t at work or using company internet was simply “incorrect.”
The claimant offered a second defense, trying to minimize the damage. He argued that the comment was “taken down immediately” and had only attracted two “likes,” suggesting it wasn’t seen or known by many. But the court was not persuaded by this.
It agreed with the company’s counsel, who pointed out where the comment had been posted: on the public Facebook page of Datuk Seri Najib. The court noted that Datuk Seri Najib is a “prominent politician” and that his Facebook page was a public site accessible to all visitors.
Therefore, the court concluded, the act of posting the comment there, in itself, “would attract enough attention,” regardless of how many ‘likes’ it received before being removed.
In one such case, the employee vented out her frustration on Facebook about her superiors without naming them calling them “bitches”.
When the employer confronted the employee, she offered three different, contradictory stories: first, her account was hacked; then, her relatives used her phone; and finally, she suspected her husband was the culprit.
The Industrial Court found her to be neither a “reliable or credible witness”. The court ruled that even without naming names, it was “very clear” who her posts were referring to.
Her conduct was deemed “blatantly disrespectful and insubordinate,” and the court declared that calling one’s superior a “bitch” was “most unacceptable”.
Finding her guilty on all charges, the court upheld the dismissal, concluding her disruptive behavior was incompatible with the duties of her employment
Nearer to home, the Sabah Industrial Court case of Nasrul Musa V. Air Asia Berhad (Award No. 2002 of 2022), the court determined that an employee’s Facebook post had severe consequences for the employer.
The court found that the Claimant’s post, which implied that the company was involved in bribery and corruption, had tarnished the company’s name. This action was not only damaging to the company’s global brand and image but also caused disruption to industrial harmony within the workplace.
Ultimately, the court concluded that the employee’s conduct in making such a posting was incompatible with the faithful discharge of his duties, effectively breaching the trust and confidence inherent in the employment relationship.
Based on the above cases, nexus between employee’s private conduct and actual harm to the company’s business or image can be established if the social media post:
i. Identifies the employer, either directly or indirectly.
ii. Damages the employer’s reputation or brand.
iii. Causes disharmony or conflict in the workplace.
Possible criminal ramifications
An alleged employee-offender who posts harmful content on social media could be charged with several possible offences, such as: Section 499 of the Penal Code provides for the offence of defamation where a person found liable can be imprisoned for up to 2 years or fined or both.
This provision applies to content which is defamatory.
Section 504 of the Penal Code (Act 574) for “intentional insult with intent to provoke a breach of the peace”. The offender faces imprisonment up to two years or with fine or both imprisonment and fine.
Section 233 – “Improper use of network facilities or network service” under the Communications and Multimedia Act 1998 (Act 588). The offender can be fined up to RM50,000 or face imprisonment up to a year or face both fine and imprisonment. An additional fine of RM1,000 for each day the offence is continued after conviction. This act deals with comments on internet and social media.
Section 14 – “Insulting behavior” under Minor Offences Act 1955 (Act 336). The offender may be fined up to RM100.00. Section 3 (1) A of the Sedition Act 1948. If posting is considered as “seditious tendency”.
The offender can be fined up to RM5,000, sentenced to imprisonment for up to three years, or both and imprisonment for a term not exceeding five years for subsequent offenses.
Key Takeaways
Employees should always be careful when commenting and making remarks social media. One wrong comment or post can result in losing their jobs. While employers should be proactive by having a robust social media policy for their employees. The policy must include:
- Purpose and Scope: State clearly that the policy applies to all employees, all social media platforms (including Facebook, WhatsApp,TikTok,Telegram, etc.) and all company-issued or personal devices used for work.
- The 24/7 Clause: Explicitly state that the policy applies to activity “during and outside of work hours”. In the Malaysia Airlines Berhad [2021] 1 ILR 579 case discussed above, the employer’s social media policy included a clause covering conduct ‘during and outside of work hours.’ The Industrial Court took this into account and ultimately ruled for the employer, highlighting why it is essential to explicitly include such wording
- Consequences: State unequivocally that a breach of the policy will be treated as serious misconduct and may lead to disciplinary action including dismissal.
