Question 149. There are some Employees who defame their colleagues on media or social networks and are found by the Employer who subsequently conducts the procedures for labour discipline. Such Employees argue that this is an interpersonal civil matter outside of the corporate territory and working hours and it will not be subject to the Employer’s labour sanctions. How will the Employer handle such a case?

Answer:

From the perspective of civil law, acts of defamation between individuals outside the workplace and beyond the working time of the Employer will not be subject to the scope of management and disciplinary action by the Employer. Accordingly, depending on the severity of acts, individuals who have defamed or hurt the honour of others (whether on media, social networks or anywhere else) may be liable for indemnifying victims for any damage in accordance with the civil law or even subject to criminal proceedings for any offence such as humiliation or slander in accordance with the criminal law.

However, from the view of labour law, if defaming colleagues on the media or social networks affect the enterprise’s assets and interests, the Employer may still apply labour law to discipline such defaming Employee provided that the ILR of the enterprise and/or the LC clearly and specifically stipulate the form of disciplinary action corresponding to the type of such violation or such violation has regulated in the Labour Code as an act of violating labour discipline.

For example: As Employee A is dissatisfied with the working attitude of Employee B, Employee A has defamed Employee B on the Facebook social network and accidentally disclosed some confidential information related to an important project of the enterprise, which both Employees are joining, without the Employer’s consent to any disclosure of such project. This behaviour of Employee A has inadvertently revealed the information that can be viewed as business secrets of the enterprise. Pursuant to Article 125.1 of the Labour Code, if an Employee has any behaviour of “disclosing of business secrets” of an enterprise, an Employer will be entitled to take disciplinary action in the form of dismissal against the said Employee without concern of whether the enterprise has been materially damaged or not. However, please note that for an enterprise to apply dismissal against the Employee in the said case, the Employer must ensure that the ILR or the LC concluded with the Employee is clearly stipulated the said violations and the Employer has strictly complied with the labour discipline procedures before issuing the disciplinary decision against the Employee.