Beyond office walls: the employer’s right to discipline employees for out-of-office speech and conduct

Rashel Ann C Pomoy

L&E Global, Manila

rc.pomoy@thefirmva.com

Benzon A Rambayon

L&E Global, Manila

ba.rambayon@thefirmva.com

Introduction

Technology and social media have blurred the boundaries of the modern workplace. Personal speech or off-duty conduct may now become instantly visible to colleagues, customers, clients and the general public. This raises the question of when out-of-office speech or conduct becomes a legitimate workplace concern.

In the Philippines, reported incidents show that off-duty or online conduct may result in consequences for employees. In 2015, Thai national Kosin Prasertsri, also known as ‘Koko Narak’, was reportedly sacked by his employer after his racist social media posts against Filipinos went viral.^[1] More recently, in 2023, Jojo Malicdem, a security guard deployed at a shopping centre in Quezon City, was dismissed after he was captured on video throwing a puppy from a footbridge.^[2]

These incidents illustrate the practical tension faced by employers: whether conduct committed outside of the workplace, and sometimes outside of working hours, may nevertheless affect the employment relationship. The answer depends not merely on public reaction, but on whether the conduct has a sufficient connection to the employee’s work, the employer’s business, or the standards reasonably expected of the employee.

The challenge of out-of-office speech and conduct

An employee’s personal views or off-duty conduct may appear purely private. However, in the age of social media, private statements or conduct can quickly become public, viral and associated with the employee’s workplace. Even so, not every offensive statement or improper out-of-office act automatically justifies employer discipline.

Philippine law recognises the employer’s management prerogative to maintain workplace order, discipline, business reputation, customer relations, and trust and confidence. Accordingly, discipline may be justified where the employee’s out-of-office speech or conduct has a demonstrable connection to the employer’s legitimate interests.

At the same time, management prerogative is not absolute. Employees remain protected by the constitutional values of free expression and privacy, as well as by the statutory right to security of tenure. The employer must therefore be able to show that the conduct is not merely disagreeable or unpopular, but legally relevant to the employment relationship.

Development in Philippine jurisprudence

Philippine jurisprudence suggests that dismissal is more likely to be upheld where the employee’s speech or conduct occurs within the workplace, uses company resources, involves clients, colleagues or subordinates, or is directly connected with the employee’s duties.

Consequently, the Supreme Court upheld the dismissal of a vessel master who allegedly hurled racist remarks against Myanmar crew members, calling them ‘animals’, and treating them in a discriminatory and inhumane manner. The Court found the misconduct directly related to his duty to maintain order, discipline and harmonious relations on board.^[3] Similarly, the Court upheld the dismissal of an HR employee who admitted to participating in indecent and profane chatroom exchanges with colleagues using the company’s office communicator, considering the conduct a deliberate violation of company rules and inconsistent with the standards expected of an HR employee.^[4]

These cases show that where the misconduct occurs in the workplace, involves company tools, affects fellow employees or subordinates, or contradicts the employee’s role, the connection between the conduct and the employer’s legitimate interests is easier to establish.

Out-of-office speech and conduct: the shift in treatment

By contrast, out-of-office speech or conduct generally requires a clearer showing of workplace nexus, prejudice to the employer, or unfitness to continue employment before discipline or termination of employment may be justified.

In a 1993 case, the Supreme Court invalidated the dismissal of an employee convicted of homicide arising from an off-duty beer house stabbing, holding that homicide does not automatically involve moral turpitude and that the circumstances of the offence must first be considered.^[5]

In a 2008 case, however, the Court upheld the dismissal of an employee implicated in the theft and use of a colleague’s credit cards, holding that theft may constitute an analogous cause for dismissal because it involves moral depravity.^[6]

In a 2010 case, the Court also upheld the dismissal of employees whose confrontation with their team leader escalated into a brawl outside company premises and after office hours, finding a clear work connection because the incident arose from workplace dynamics and a report made to management.^[7] On the other hand, in a 2016 case involving a Facebook post allegedly referring to company concerns with the Bureau of Internal Revenue and containing insulting remarks against a colleague, the Court held that the post, while improper, did not amount to a wilful breach of trust warranting dismissal, and that a lighter penalty would have sufficed.^[8]

These cases suggest that out-of-office speech or conduct may justify dismissal only where it bears a substantial and reasonable connection to the employment relationship, such as where it prejudices the employer’s business or reputation, involves co-employees, clients or subordinates, constitutes a crime or act involving moral turpitude, or demonstrates unfitness to continue employment. Where the conduct is vague, personal, isolated or unsupported by proof of harm, dismissal may be disproportionate.

Management prerogatives and its limits

This prerogative, however, must be exercised in good faith for the advancement of the employer’s interests, and not to defeat or circumvent employee rights under the law or valid agreements. Management prerogative must likewise not be used in a way that is unreasonable, inconvenient, or prejudicial to the employees involved.^[9]

Thus, management prerogative must yield to the employee’s right to security of tenure. Under the Labor Code, an employee may only be dismissed for just or authorised cause and after observance of due process.^[10] Accordingly, before dismissing an employee for out-of-office speech or conduct, the employer must show that the act falls within recognised grounds for employment termination, such as: serious misconduct; wilful disobedience, loss of trust and confidence; fraud or wilful breach of trust; commission of a crime or offence against the employer; the employer’s family, or duly authorised representatives, or an analogous cause. The penalty imposed must also be commensurate to the nature and gravity of the offence. ^[11]

In practical terms, the employer should be able to identify the specific rule, policy, duty or legitimate business interest affected by the employee’s conduct. It should also determine whether the employee’s position requires a higher degree of trust, public-facing responsibility, leadership or sensitivity, as such factors may affect the proportionality of the penalty.

Managing risks in dismissing employees based on out-of-office speech and conduct

Discipline should not be automatic, much less dismissal. An offensive, controversial or viral statement, or out-of-office conduct that catches public attention, does not, in itself, justify termination of employment. In practice, this means verifying the facts, giving the employee an opportunity to explain, and weighing whether dismissal is warranted or whether a lesser penalty would suffice.

Employers should therefore avoid reacting solely to virality, public pressure or reputational discomfort. Instead, they should conduct a fair and documented assessment of the facts, the applicable company policies, the employee’s role, the impact on the workplace or business, any previous violations, and the consistency of the proposed sanction with penalties imposed in similar cases.

In short, the safer approach is to anchor any disciplinary action in a clear and evidence-based link between the conduct and the workplace. This protects both the employer’s legitimate interests and the employee’s right to fair treatment, while reducing the risk that discipline will later be viewed as excessive, arbitrary, or unsupported by law.