CAN YOU KEEP A SECRET- A FAIR GROUND OF DISMISSAL?

CAN YOU KEEP A SECRET- A FAIR GROUND OF DISMISSAL?

“Oh do spill the beans!”

“She is such a blabbermouth!She promised not to tell anyone!”

If the above idioms are familiar to you, welcome to the world of Gossip Girl. It is rather common for your employees to mingle around to understand one another better. However as time pass, when each is comfortable enough in their own skin, office gossip start brewing. Sharing the latest gossip, kiss and tell and badmouthing your superior although frowned upon has became a norm among your co-worker. Each of us had our fair share of fun doing it but can gossiping be a fair ground of dismissal?

In the case of Malaysia National Insurance Berhad V Ratnawati Mohamed Nawawi [2007] 1 ILR 189, The Claimant a personal assistant to the Chairman was dismissed after the company found out that she had been using her office computer to undermine the authority of senior officers of the company by sending emails to other employee which is also her close friends. The Tribunal Court view was that it is quite common and natural for staff to gossip about their superior officers. It can happen anywhere and any time especially when there is a gathering. The court believes the claimant’s story that it was not meant to undermine any senior officers but merely a tea-room gossip meant to be within the knowledge of the four friends. To discuss among friends is one of the ways for employees to release their disappointments but no employee would say directly to the senior officers unless the employee is prepared to resign from the company or risk being dismissed. Hence, the court found that the Claimant had not committed any misconduct against the company and her dismissal was without just cause or excuse.

From the case above, we can derived that as long as it happens behind close door, office gossip would not be a just excuse for dismissal even if the content include vulgarities of some sort as they are not suppose to be heard by superiors.

In a similar scenario, the Industrial Court in the case of Esniza Esa V Naza Kia Sdn Bhd [2009] 4 ILR 166 after perusing carefully the said wordings of the said false accusation to a third party through SMS messages is of the view that although the words used may be referring to the state of affairs of the department, it was not meant to be an official statement from an employee to undermine her department. The reasoning provided by the court is that the said SMS was sent after office hours to a friend and was for her personal consumption. When an employee is not happy with her workplace, one of the ways taken is to discuss among her colleagues or friends to release their disappointments. Hence, it is quite common and natural for the staff to gossip about their department. Therefore, the court held that based on the totality of all evidence adduced, the company has failed to produce cogent and convincing evidence that the Claimant’s dismissal was not arbitrary, tainted by unfair labour practice and without just cause or excuse.

On the other hand, the Industrial Court in the case of Afnizahanim Mohammad Saad V Kemaman Bitumen Company Sdn Bhd [2019] 4 ILR 503 held in favour of the company. The Claimant was charged among others for harassment of other employees/subordinates by spreading unsubstantiated rumours about them of a malicious nature; character assassination of a male subordinate and a female employee that can be treated as Sexual Harassment. The Claimant was insinuating that there was an affair between her then subordinate and a female employee. The Claimant would constantly badmouth both individuals. The Court was inclined to agree with the Company’s submission that substance of the charge relate to sexual harassment issue when the Claimant spread false rumours within the company about the purported affair. The Claimant was able to construct her reply as to why action could not be taken against her in her very detailed 6 pages reply to the show cause letter. Hence, after considering all evidence available, there was no prejudice against the claimant hence the Claimant is guilty of the charge.

Henceforth, each problem should be considered on a case by case basis as the Industrial Court would look into the intention behind the action. Companies can still dismissed the employee for gossiping if the Company is able to prove on a balance of probabilities the charge.

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