When employees make inappropriate statements on social media

In boom of digital technology, social media has become an indispensable part of everyday life, offering numerous conveniences to individuals. In addition to its entertainment value, it is increasingly seen by society as a "rating platform" for an individual or even the organisation to which that individual belongs. In the context of labour relations, there have been numerous instances where inappropriate behaviour by employees on social media has put companies in difficult situations and even caused damage to the business. This poses a challenge for companies to manage and appropriately control the actions of employees on social media in order to prevent these actions from negatively impacting the company's interests.

From a real case

Recently, news reports have highlighted the case of a Japanese director of the Riki Nihongo Language Centre (District 1, Ho Chi Minh City) who was fired from the centre after making a controversial statement: "In Vietnam, I have rarely met a person with perfect morals. 95% of the people I meet are not". This statement, made in a message, and the subsequent actions of an employee of the centre, have caused public outrage.[1] Specifically, Mr. Nagumo Tadakuni (commonly known as Shin) explained that he did not fully understand the meaning of the word “morality” in Vietnamese and meant to refer to behaviours such as non-compliance with laws, responsibilities and work attitudes of people he had met in Vietnam. However, according to the Centre's representative: "During the process of explaining to the Board, Shin did not fully understand the meaning of the Vietnamese word 'morality' or the meaning of the word in Vietnamese culture. Shin had used his understanding of the Japanese language to translate the meaning into Vietnamese and sent the message to a Vietnamese person. This action caused great frustration and deeply offended the reader and the Vietnamese community”. As a result, the Centre decided to terminate Mr Shin's employment, despite his earlier submission of a letter of resignation.

The situation described above is not uncommon today, as many organisations have faced significant challenges in the past due to inappropriate statements and behaviours by employees on social media. These statements and actions can cover a wide range of topics, including sharing information about the company, colleagues or even personal views on politics, religion or hot social issues. Ultimately, if these posts contain negative content, they can damage the company's image and reputation. In this context, companies need to have a plan in place to quickly address and resolve issues related to employees' social media statements, protecting their interests while minimising potential risks. In the case above, the decision by Riki Nihongo Language Centre to terminate Mr Shin's employment may have satisfied those who were outraged by his statement. From a media point of view, this action helped the centre to calm public opinion and protect its image. However, from a legal perspective, if Mr Shin's dismissal was not carried out in accordance with the law and the centre's internal regulations, the company could face serious legal risks.

Some legal issues

When an employee makes inappropriate comments that affect the company, several legal issues arise.

Source: The Saigon Times

First, the relationship between the employer and the employee

In the age of social media, it is not uncommon for companies to use social media as a tool to carry out various business activities such as recruitment, advertising, customer care and more. These tasks are often carried out by the company's employees, and in such cases, social media activity is considered part of the employee's job responsibilities. Therefore, if an employee makes inappropriate comments on social media in the course of their work, they may still be subject to disciplinary action under employment law.

However, the situation becomes more complex when an employee's comments are made outside the scope of their job responsibilities. For example, sharing personal views on politics, religion or other issues unrelated to their work on social media. In such cases, it is more difficult for the company to take disciplinary action because the employee's actions are outside the scope of their job duties. However, even in such cases, the company may still be affected by the employee's behaviour, particularly if the employee holds a senior position within the company or has a large social media following. This can damage the company's image and reputation. Therefore, companies need to have a clear framework for dealing with such situations. In this case, the company may consider disciplinary action, such as dismissal, because the employee's actions have caused serious damage or pose a significant risk of damage to the company. However, in order to take such action, the company must clearly define these behaviours in its internal rules and strictly follow the disciplinary procedures set out in labour law.

Second, the relationship between companies and related organizations or individuals.

According to Article 597 of the Civil Code 2015, a company may be required to compensate for damages caused by its employee while performing tasks assigned by the company. Once the company has compensated for the damage, it has the right to seek reimbursement from the employee who is at fault for causing the damage, as provided by law. In this context, if an employee, while performing tasks such as posting job advertisements, providing customer service or other company-related activities, makes statements that cause damage to other organisations or individuals, the company will be responsible for compensating the affected parties. The company may then seek reimbursement from the employee for the amount paid. A key point to note is that the employee must be "at fault" in causing the damage. This is an element that the company must prove when seeking reimbursement from the employee. To ensure a solid basis for proving the employee's fault, the company should clearly define this aspect in its internal labour regulations.

Meanwhile, if an employee makes statements outside the scope of his or her work that adversely affect the rights and interests of other organisations or individuals, the company must also take appropriate measures to protect itself from these parties. In particular, it is important for the company to respond promptly and tactfully to public opinion, especially the views of the organisations or individuals directly involved in the matter. This proactive approach can help the company manage potential reputational risks and legal liabilities.

What solutions are available to companies?

It is clear that, depending on the specific circumstances, companies can take different actions or pursue different legal procedures to protect themselves from the damage caused by the actions of employees. However, for any action or litigation, the company must have a clear basis on which to proceed. In this case, in addition to the legal provisions, a detailed and clear internal labour code that specifically addresses the behaviour of employees on social media can provide the necessary legal basis for the company to take disciplinary action against employees. In addition, when dealing with other organisations or individuals, it is crucial for companies to be able to demonstrate that the employee's actions do not represent the company's views, policies or, in particular, its approach. In order to demonstrate this, the company should issue internal rules governing the conduct of employees on social media and in the digital space in general. These policies should clearly exclude the company's responsibility for any statements or actions made by employees on social media. For guidance, companies can refer to the Code of Conduct on Social Media, issued by the Ministry of Information and Communications under Decision No. 874/QD-BTTTT on June 17^th 2021[2]. This document can serve as a valuable reference when draftting their internal regulations and policies.

In addition, the company's response to the media is another critical factor that needs careful consideration. In many cases, in their haste to respond to the opinions of related organisations or individuals, companies may take actions that are not entirely appropriate and may exacerbate the problem at hand. If an employee is found to have made inappropriate statements on social media, the company must carefully assess the situation based on internal rules, legal requirements and the actual circumstances, and come up with an appropriate solution to mitigate the situation while providing a solid foundation for any further action or legal proceedings that may be necessary.

First and foremost, every statement and action taken by an employee stems from the individual's personal consciousness. Therefore, it is essential for companies to educate and communicate to their employees the importance of both the positive and negative impact of social media on the company. In this way, employees will better understand the potential consequences of their actions. This approach can be seen as an optimal solution that every company should implement to protect itself from the influence of the rapidly growing power of social media in today's world.

Read more at: Khi người lao động phát ngôn thiếu chuẩn mực trên mạng xã hội

Lawyer Nguyen Van Phuc - To Kien Luong

HM&P Law Firm