Question 129: There are some Employees who defame their colleagues on social networking sites and are found by the Employer who subsequently conducts the procedures for labour discipline. Such Employees argue that that is an interpersonal civil matter outside of the corporate territory and working hours and they will not be subject to the Employer’s labour sanctions. How will the Employer handle such cases?

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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 any offense such as humiliation or slander, individuals who have defamed or hurt the honour of others (whether on 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 in accordance with the criminal law.

However, from the view of labour law, if defaming colleagues on the social networking sites affect the Employer’s assets and interests, the Employer may still apply labour law to discipline such defaming Employees provided that the ILRs of the enterprise clearly and specifically define the forms of disciplinary action corresponding to this violation.

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 the relevant information to an important project of their enterprise both of these Employees are joining without the Employer’s consent to any project disclosure This behaviour of Employee A has inadvertently revealed the information that can be viewed as business secrets of the enterprise. Pursuant to Article 126.1 of the Labor Code, if an Employee shows acts of “disclosing of business secrets” of an enterprise, the enterprise will be entitled to disciplinary action in the form of dismissal against the Employee without regard to whether the enterprise is materially damaged or not. However, please note that for an enterprise to apply dismissal against Employees in the said cases, the Employer should ensure that the ILRs are clearly defined on the said violations as well as the labour discipline procedures the Employer has strictly followed before issuing the disciplinary decision against any Employee.