July 2025
By Nurul Izzah Binti Jafri
(a) Introduction
In today’s workplace, where frustrations can quickly become public with just a few keystrokes, employees must be cautious about what they say—whether in person, via email or on social media—because such expressions can carry serious consequences. Malaysian employment law recognises various grounds on which an employer may lawfully terminate an employee, with misconduct being one of the most frequently invoked.
In Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union [1990] 1 MLJ 5, misconduct was defined as conduct “so seriously in breach of the accepted practice that by standards of fairness and justice the employer should not be bound to continue the employment”. Among the various types of misconduct, insubordination is one of the most serious and commonly litigated.
(b) What Is Insubordination?
Insubordination occurs when an employee wilfully disobeys a lawful and reasonable instruction from a superior or behaves in a manner that undermines the superior’s authority. This may include rude, insolent or derogatory language directed at a superior. The Industrial Court in Tay Chuan Chan v United Malacca Berhad [2017] 2 LNS 1537 observed that language used by an employee could be considered insubordinate if it tends to lower the dignity or authority of a superior officer.
(c) When Termination Was Found Justified and Not Justified
In the next part of this article, we will look at two cases decided by the Industrial Court, involving employees who were dismissed for insubordination. These cases illustrate the fine line between expressions that amount to insubordination and those that do not.
In Ng Seok May @ Angie Sabrina v Maxis Broadband Sdn Bhd [2020] 2 ILJ 3, the claimant was dismissed after being found guilty of three charges of misconduct namely (i) posting negative comments about her superiors and/or colleagues on her personal Facebook account, (ii) making disparaging remarks about the company to an external vendor and (iii) being disrespectful towards her superiors in email correspondences.
The Company stated it had lost trust and confidence in her, leading to her immediate dismissal.
The Court held that the Company had proven all three charges.
In relation to the first charge, although the claimant did not name her superior or colleagues in her Facebook posts, the Court found that it was apparent from the context of the posts that she was referring to particular individuals. The claimant had repeatedly used foul language to describe her superior and colleagues, which the Court found to be blatantly disrespectful and amounted to serious insubordination.
The Court also found the claimant guilty of the third charge, as her email correspondence showed a consistent pattern of insubordination towards her superior. For completeness, the Court also found the employee guilty of the second charge, which was not related to insubordination.
Ultimately, the Industrial Court concluded that the claimant’s conduct and language were clearly unbecoming of a subordinate. She was not only rude and indignant but also made unnecessary and disparaging remarks against her superior and colleagues. Accordingly, the Court upheld the Company’s decision to terminate her employment, stating that it could not have agreed more with the Company’s observations. It is noteworthy that, in reaching its decision, the Court cited with approval the following passage from the case Pearce v Foster [1886] 17 QBD 536, where Lord Esher MR said of the following duty of a servant to his master:
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. …
An example of a case where the Industrial Court found that the dismissal was without just cause or excuse, despite an allegation of insubordination, is Malaysia National Insurance Bhd v Ratnawati Mohamed Nawawi [2006] ILJU 214. In that case, the Claimant was dismissed after the Company discovered she used her office computer to send a series of emails to her colleagues containing derogatory comments about her superiors. In her defence, the Claimant insisted that the messages were harmless “tea-time” chats intended to relieve work stress, not to undermine anyone or disrupt her duties as a personal assistant. She sent the emails only to her close friends and she claimed she did not intend to harm or question her superiors’ authority, although she acknowledged some comments were inappropriate.
The Court held that while the emails contained inappropriate language, they did not amount to serious misconduct warranting dismissal. In so holding, the Court also held that “it is quite common and natural for staff to gossip about their superior officers. It can happen anywhere and anytime especially when there is a gathering. It could be over coffee or tea or meal that the gossip could happen. In the instant case it happens to be in the e-mails of the Claimant and her friends.”
Further, the Court found that the words were not said directly to the officers concerned and were not meant to be heard by them. The Court also held that if derogatory words were to reach the ears of the senior officers through a third party it would not be the same as it is said directly to the senior officers. The Court also believed it was relevant that the emails were discovered in the course of another investigation and no domestic inquiry was held before the dismissal. Based on the above, the Court found that although the claimant was partly at fault, her dismissal was not with just cause or excuse. As a result, her backwages were reduced by 45% due to the Claimant’s contributory misconduct which led to her dismissal.
(d) Conclusion
The line between casual expression of thoughts and insubordination in the workplace is often thinner than employees may realise. As the cases discussed above show, Malaysian employment law permits dismissal for misconduct, including insubordination, when the facts support a finding that the employee’s actions undermined the employer’s authority. However, the Courts remain mindful of context, intent and proportionality. Not every impolite remark or internal grievance will justify termination. The key is whether the conduct strikes at the heart of the employment relationship and makes continued service untenable. Employers must ensure that proper procedures, including undertaking an inquiry, are followed, while employees should remember that in the digital age, words, whether spoken or typed, carry weight and consequences.