"It Was On My Private Account, After Hours" Is Not The Defence Malaysians Think It Is

Two Malaysian Industrial Court cases, two opposite results.

In Mohd Azizi bin Sohan v Asian Kitchen (M) Sdn Bhd [2017] 4 ILJ 376, the employee's Facebook posts amounted to misconduct — but the Court held the misconduct was not serious enough to warrant dismissal. He had been apologetic when confronted.

In Syed Naharudin Syed Hashim v Etiqa Takaful Berhad [2019] 1 ILR 198, an employee was exposed online by an undercover journalist team over allegations of sexually grooming underage girls, and the video went viral on YouTube. He argued the conduct was outside working hours and that his employer was not identifiable from the video. The Court rejected both defences, holding that the power of social media was such that despite his face being blurred, the public would still have known where he worked — and that his senior management position aggravated the seriousness.

So the answer to "can they fire me for a post" is: yes, sometimes — and the factors that decide it are not the ones most people assume.

1. The test the Industrial Court applies

The starting authority commonly cited is the text by B. R. Ghaiye, used as guidance by the Industrial Court: an act may be misconduct for which an employer may punish by dismissal or otherwise, even if it occurs outside working hours and outside the employer's place of business, if the act is inconsistent with the fulfilment of the express or implied conditions of service.

In practice, the factors that recur:

The last row is the one to hold on to. An employer can prove a post was misconduct and still lose, because dismissal must be a proportionate response.

2. "But it was private" — why that argument struggles

Three reasons the private-account defence tends to fail:

One — identifiability is judged practically, not technically. In Syed Naharudin the employee's face was blurred and he argued the employer was not identifiable. The Court held the public would still have known where he worked.

Two — the duty of fidelity does not clock off. The Ghaiye formulation expressly contemplates acts outside working hours and outside the workplace amounting to misconduct where inconsistent with the conditions of service.

Three — screenshots exist. A "private" post shared by one of your contacts is no longer private in any practical sense, and the Court assesses the actual consequences.

What "private" does still do: it goes to the degree of harm. A post seen by twelve people who did not identify your employer is a materially different case from one that circulated widely. It affects proportionality, not whether misconduct can exist at all.

3. Posts about the employer versus posts about politics

This distinction matters and the cases split along it.

Posts criticising or abusing the employer, supervisors or colleagues are the strongest ground for dismissal. In one case that reached the Court of Appeal, the Industrial Court had reviewed evidence of a series of abrasive WhatsApp messages including personal attacks on the employee's supervisor, together with Facebook postings openly abusive and disrespectful towards the supervisor. The High Court quashed the Industrial Court award on judicial review, but the Court of Appeal unanimously restored it, holding the Industrial Court's findings were not plainly wrong and that there were no valid grounds for the High Court to interfere. The employee was found to have been dismissed with just cause and excuse — a person described as "continuously argumentative, disrespectful, abrasive and uncooperative" towards her supervisor, without a clean disciplinary record.

Posts on politics and 3R (race, religion, royalty) are more complicated, and public sector employment is a distinct regime.

A significant case in the public sector. An administrative and diplomatic (PTD) officer, Nazrul Imran Mohd Nor, was sacked over an allegedly adverse comment about the government made on a former Prime Minister's Facebook post. The Court of Appeal ordered his reinstatement, and in October 2021 the Federal Court dismissed the government's and the Public Services Commission's application for leave to appeal, on the basis that the questions of law posed did not meet the requirements of s.96 of the Courts of Judicature Act 1964. He got his job back.

Note the limits of that case. It concerned a civil servant, whose political conduct is separately governed by Regulation 21 P.U.(A) 395/1993 — and those rules differ by service group. See (Whether A Malaysian Civil Servant Can Join A Political Party Depends On Their Grade).

Where a post is also criminal — for example under s.233 CMA 1998, which since the 2025 amendments carries up to RM500,000 and 2 years — an employer will point to that as independent grounds. But a criminal investigation does not by itself establish misconduct for Industrial Court purposes; the employer must still prove its case.

4. Process — where employers lose

Establishing the misconduct is only half of it.

The domestic inquiry point, clarified in 2026. In Mohd Dzulkarnain Bin Shaharud-Din v TM Technology Services Sdn Bhd (Award No. 245 of 2026), the Industrial Court reaffirmed that:

• an employer is not bound by the findings of a domestic inquiry panel, even where the panel found the employee not guilty
• a domestic inquiry is primarily a fact-finding mechanism; its findings are not final or binding
• the employer retains the inherent power to differ from the panel's conclusion, provided it applies its mind to the evidence and records reasons for its disagreement
• proceedings before the Industrial Court are heard de novo, so the Court is not concerned with the correctness of the panel's findings but determines on the totality of the evidence whether the employer established the misconduct on a balance of probabilities

Practical consequence for employees: "the inquiry cleared me" is not the end of the argument. Practical consequence for employers: if you depart from your own panel's finding, record your reasons.

Warnings and proportionality. Malaysian cases on misconduct generally require employers to show they acted reasonably — issuing show cause letters, verbal and written warnings, providing opportunities to improve, and documenting the process. Dismissal for a first, isolated, non-serious post by an employee with a clean record is the case employers most often lose.

5. What a defensible social media policy looks like

For employers:

• ☐ Have one, in writing, and distribute it. In the WhatsApp exit case, the High Court's reasons for quashing the award included that there was no clear written SOP and that the conduct did not breach any company policy. The Court of Appeal restored the award on other grounds — but the absence of a written policy was a live weakness.
• ☐ Define what is prohibited specifically: disclosing confidential information, disparaging the company, clients or colleagues, posting in a way that identifies the employer, harassment of colleagues.
• ☐ Say what happens on breach, and grade it — not everything is dismissible.
• ☐ Address personal accounts explicitly, and be honest that off-duty conduct can be caught where it damages the employer.
• ☐ Cover WhatsApp groups — work groups are a recurring source of these cases.
• ☐ Get acknowledgement of receipt from every employee.
• ☐ Apply it consistently. Selective enforcement is fatal at the Industrial Court.
• ☐ Run a proper inquiry, and if you disagree with the panel, write down why.

For employees:

• Assume anything you post can be screenshotted and reach your employer.
• Do not name or identify your employer, clients or colleagues in a complaint.
• Do not post from a work account or work device about a workplace grievance.
• If confronted, a considered apology has helped — it mattered in Mohd Azizi. But take advice before signing anything.
• Do not delete the posts before getting advice. Deletion can look like consciousness of guilt and the employer usually already has screenshots.

6. Posts predating employment

Your brief asked us to address this, and we are going to be candid: we could not locate a Malaysian Industrial Court authority squarely on dismissal for posts made before employment began.

What can be said from principle:

• Misconduct is generally assessed against the conditions of service — which did not exist before the employment did.
• An employer who knew about the post at hiring and appointed anyway will struggle to rely on it later.
• The stronger employer argument is not misconduct but misrepresentation at recruitment — if the person actively concealed something they were asked about.
• If a historic post resurfaces and goes viral during employment, the employer's case shifts to the current reputational damage rather than the original act.

That is reasoning from principle, not from decided Malaysian authority. If this is your situation, take advice rather than relying on it.

What to actually do

If you have been dismissed over a post: 1. The s.20 deadline is 60 days from dismissal — or from expiry of the notice period where dismissed with notice. File with the Director General of Industrial Relations at the nearest JPP office. It is free. See (Unfair Dismissal in Malaysia: Fired for No Good Reason? You Have 60 Days to Act). 2. Preserve everything: the post, its reach and engagement figures, who could see it, your privacy settings at the time, the show cause letter, the inquiry notice and minutes, and your written responses. 3. Gather your record: appraisals, absence of prior warnings, length of service. 4. Note whether the employer applied its policy to others in comparable situations.

If you are an employer considering dismissal:

• Ask whether you can prove the misconduct on a balance of probabilities with the evidence you actually hold.
• Ask whether dismissal is proportionate — Mohd Azizi is the warning.
• Check your written policy exists, was distributed, and was applied consistently.
• Run the inquiry properly and record reasons for any departure from its findings.
• Take advice. Back wages run to 24 months (12 for probationers) plus compensation in lieu, with 8% interest on money awards from the 31st day.