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LAST week Andrew Chong, the Chief Operating Officer (COO) of local burger chain MyBurgerLab was sacked following a personal remark on social media which touched on religious sensitivity. 

The company issued an apology and maintained that it was “rightful anger, disappointment, and pain” among its Muslim customers and friends, stressing that it did not reflect the brand’s principles of respect, unity and inclusivity. MyBurgerlab further added “We condemn any discrimination or disrespect toward religion and stand in solidarity with our Muslim community”. 

There was a lot of anger and calls for boycott of the brand. This is a stern reminder for businesses to be cautious and not take sensitive issues like race; religion and the rulers (3Rs) lightly. With the use of technology and social media such indiscretions easily become viral and are exposed to the entire world.

3Rs as an Employment Misconduct

Making racist comments or insulting one’s religion can disrupt peace and harmony at workplace. The Industrial Court (IC), in Malaysia Smelting Corporation Bhd. V. Abu Bakar Muhamad [2000] 2 ILR observed:

“In our country where interracial harmony is the very fabric that weaves peaceful co-existence amongst the races, any statements that are provocative and/or with racial slur must be avoided. A generalised statement such as that uttered by Tan would hurt the feelings of the race. This has been emphasised time and again by our leaders as well.”

In Freescale Semiconductor Malaysia Sdn Bhd v. Edwin Michael Jalleh & Anor [2013] 8 CLJ 1001, the IC reminded the importance of being sensitive to others. With this regard, the IC stated:

“... one must expect in a multicultural society such as in this country, that the workplace is also multicultural. In such multicultural work environment, industrial harmony, one of if not the main object (s) of industrial relations, is achieved not by one acting on the norms acceptable to himself, but he must be sensitive to what is acceptable by other.”

Another IC in Affin Bank Bhd. v. Loh Poh Hoong [2006] 2 ILR 1171 firmly reminded employees:

“The Industrial Court is duty bound to send a clear message to all employees that racial slurs must be avoided at all costs for the maintenance of industrial harmony and in good conscience will not tolerate racially insensitive and uncivil conduct.”

Racist comments and being insensitive to religion is a serious misconduct which may warrant dismissal. In the past there were few such incidents which led to the employee being sacked. This are just some recent examples:

Honda sacked a female employee over comments on Facebook about fireman Adib’s death, in which she said Adib’s death was not a failure of the government but “your God’s failure” in healing Adib.

A IT Sales Manager at Cisco Asean was sacked for posting a derogatory remark regarding the abdication of the Yang Di-Pertuan Agong on the Facebook.

In Ravindar S Latchmannen V. Winitex Sdn Bhd [2019] 3 ILR, the Head of Department who worked with the company for 32 years made insulting remarks on a particular race at workplace in front of employees.

The company sacked the said employee. The IC found that the dismissal was appropriate even though the claimant has served the company loyally and faithfully for 32 years and for these reasons. The IC found that his insensitive act had caused industrial disharmony in the company. 

It is pertinent to note that such misconduct doesn’t always happen during or at workplace. In most cases such actions occur outside workplace or beyond working hours.

The question arises: Whether disciplinary action can be taken against an employee for something done beyond work hours or outside of the company premises?  

The employee can be held accountable for his conduct if the employer can successfully establish sufficient nexus or link between the employee’s off duty conduct and its impact on the employer’s business and reputation. 

In Perwira Habib Bank Bhd v Yusoff Bin Zakaria [1995] 1 ILR 123, the IC upheld the employer’s decision to dismiss one of their bank managers for allegations for being involved in illegal activities outside of employment.

The IC held that as the bank manager was a senior executive and branch manager of the Bank, a high-standard of conduct was expected of him. As such the illegal conduct would bring disrepute to the banks corporate image.

Possible Criminal Prosecutions

Employees should be aware that there are serious criminal ramifications when it involves 3 R issues. Some laws that the alleged offender can be charged with are:

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, 3 R issues are 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.

Important Lessons for both Employers and Employees

Making derogatory or insensitive remarks about 3Rs can cause a great deal of disharmony and discontent among employees at workplace. Employees should always be sensitive to others. They should also be careful when commenting and making remarks social media. Why risk oneself being pursued by the law when one can spend the time productively?

Whilst employers should be more inclusive in their hiring practices to hire people from different backgrounds to better understand and integrate people from diverse backgrounds. There must be clear policies in place, condemning racist or insensitive comments towards religion. 

Employers should also have a clear policy against conduct which is unacceptable especially on social media and outside work which might bring disrepute to the companies’ reputation. All employees should be trained in inclusivity from the very top to the bottom. 

The employer should take the first step by taking the lead of being respectful and sensitive to all employees. An inappropriate 3R comment or any complaint should be speedily dealt with. The offender must be appropriately punished. There should be zero tolerance for such conduct.

Employers should remember that such indiscretions will massively damage their business and their companies’ reputation. Customers may boycott your business.

There’s also a risk of your company being exposed violence by vigilantes which will affect your employees and business. It is time for employers to be more proactive in preventing such issues.