The prevailing question – are the employees entitled to a right to privacy?

The prevailing question – are the employees entitled to a right to privacy?

In this fast paced era where the Internet is dominating every part of our life, our constant content consumption would be from social media.  Anything can go viral on social media especially so when the content of these posts are interrelated to sensitive issues that would affect the reputation of someone or a company or cause disharmony among the public. It has also become a norm for employees to use social media as a platform to vent out their dissatisfaction, frustration and anger about their colleagues or the employer. The consequences of these post would sometimes lead to dismissal of an employee from the company especially if public outcry is present.

The term privacy refers to the privilege owned by an individual from any interference by others with any of the private activities so long as these activities are not detrimental to others and are not illegal. Hence, anything done behind closed doors it’s your problem until it reaches the attention of the authority or the public. In Malaysia however invasion of privacy rights is not wrong which can be seen in the case of Ultra Dimension Sdn Bhd V Kook Wei Kuan [2004] 3 CLJ 285. His Lordship held that privacy rights which is the right to be left alone and live free from all intrusions by others is different from life and personal liberty which can be interpreted as enjoyment of life and freedom if an individual to move and be engaged in any activities( which does not contravene the laws) without any hindrance or obstacles. Therefore privacy rights are not included and not provided under Article  5 of the Federal Constitution.

MONITORING

The Personal Data Protection Act (PDPA) was enacted with the intention to regulate the collection, use and disclosure of personal data collected and to protect the privacy of personal data and information, both physically residing in computer systems and those transmitted over the Internet. The question to be asked is does our employer have the right to monitor?In the event where the employees concerned were using the company equipment and company time, then there is no right to privacy.

EMAIL

Toh See Wei v Teddric Jon Mohr & Anor [2017] 11 MLJ 67

The court found that all the emails information in question are about work related and affairs of the hospital. The devastating evidence is the admission of the plaintiff that some of the emails sent by him during office hours. It is nothing wrong for the first defendant as CEO to see and to use the email information in the course of his duty as CEO who is in the highest authority in the hospital and actually controls the hospital as far as policies are concerned.

PRIVATE TIME VS WORKING

Lee Kim Yun V Contra Enterprise Sdn Bhd [2004] 2 ILR 225 

In determining whether there is a clear nexus with his employment, all circumstances must be considered. If the impugned act took place at a function, the nature and purpose of the function, the venue, the time of the function,the persons attending the function, in what capacity they attended the function, the preparations for the function and the person or organisation bearing the expenses of the function are relevant.

Selvamohan Gopal & Others v Telekom Malaysia [2014] 1 ILR 123

Although the internet may allow companies to be more competitive, employees have a responsibility to use those resources in a manner that does not detriment the company’s interests, violate the law, or infringe the privacy of other employees.

WHETHER IT IS JUST CAUSE AND EXCUSE FOR DISMISSAL

Schmidt Scientific Sdn. Bhd. v Ors Han Suan [1995] 5 MLJ 63 

The principles of equity which would interfere to prevent those receiving information in confidence from taking unfair advantage of it. Equity is provided by s 30(5) of the IRA 1967 as a means which need to be used in arriving at an award by the Industrial Court. The principles of loss of trust and confidence hence is used by the Industrial Court as a basis to uphold dismissals of employees who commit cyber misconduct to be just cause and excuse. 

Pearce v. Foster [1886] (71) QBD 536

The rule of law is that where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him.

Therefore, from all of the above cases, we can conclude that if the remarks or content made is detrimental to the company reputation, then the company has the right to terminate your service with them. This includes comments made after working hours as long as they are work related. Therefore, as long as the monitoring is done within the means of the legislation the company has the right to monitor your activities on the Internet and so right to privacy does not exist in this context.

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