When does strongly worded workplace communication cross the line into insubordination?
The Industrial Court of Malaysia recently dealt with a case involving a senior corporate banking manager who was dismissed for allegedly using insolent and disrespectful language towards her superior.
The worker argued that her dismissal was unjust, claiming she was subjected to undue pressure and unfounded allegations by her newly appointed superior following her return from medical leave.
In contrast, the company maintained that her conduct breached the standards of respect and professionalism expected of a senior managerial officer.
Employment background and reporting changes
The worker commenced employment with the company on 5 September 2016 as a senior corporate banking manager, with the title of senior vice president, and received a monthly salary of RM21,000.
She was also entitled to fixed monthly allowances totalling RM2,575, comprising accommodation allowance of RM1,600, car park allowance of RM500, mobile phone allowance of RM300, and benefits allowance of RM175.
The worker's employment was confirmed with effect from 5 May 2017 via a letter dated 12 May 2017.
In early February 2019, the worker's superior was transferred to Penang, and the worker thereafter reported to a new superior who replaced him as head of corporate banking.
Prior to his promotion, both the worker and the new superior were colleagues reporting to the same person.
The worker was on hospitalisation leave from 30 April 2019 to 16 August 2019, during which her duties were temporarily assigned to other officers.
Upon her return to the office in August 2019, the new superior refused to reassign her duties, leaving the worker with approximately 20% of her prior responsibilities.
When the worker sought clarification, the superior allegedly stated she was "not up to the mark" and made various unsubstantiated allegations against her.
As a result of the strained working relationship, the worker requested a transfer to another department; however, her request was rejected by the company.
Performance plan and first show cause letter
Despite satisfactory performance ratings of "Good" and "Strong" for 2017 and 2018, the worker was placed on a performance improvement plan commencing in November 2019 for a period of six months.
The worker contended that no performance evaluation was conducted for 2019. On 9 December 2019, the company issued a show cause letter alleging that the worker had used insolent and disrespectful words towards her superior in an email dated 2 December 2019.
The company highlighted several statements made by the worker in the email, including: "Your email below contained false accusations which are NOT based on the truth," "Honestly, I am really getting very tired of your incessant false accusations as my Line Manager," and "Pls take note that should you continue to make such FALSE accusations about me in writing as below said, I retain my right to sue you in my personal capacity in the future."
The worker requested an extension of time to respond, seeking to reply by 6 January 2020, which the company duly allowed.
The worker, via email dated 6 January 2020, denied the allegations and explained that she had merely responded to the superior's earlier email, which had made unfounded accusations against her. The worker denied having threatened or disrespected her superior in any way.
Second allegation and suspension
According to records of case no.: 5/4-2439/21, the company received another report alleging that the worker had acted insubordinately by making insolent and disrespectful statements against the superior during a performance improvement plan review meeting held on 11 December 2019.
The company issued a letter dated 7 January 2020 informing the worker that a further escalation had been received regarding her conduct and that a subsequent show-cause letter would be issued.
The worker was on hospitalisation leave from 31 January 2020 to 20 March 2020. The company stated that it deferred its disciplinary action during this period to allow the worker time to recuperate.
Upon her return to work on 23 March 2020, the company issued a second show cause letter alleging that during the meeting on 11 December 2019, the worker made statements including: "Be a man and learn how to treat a woman," "Respect needs to be earned and cannot be demanded," "You are cooking up things," and "You are threatening me and making false accusations. I will sue you in the court."
By the same email dated 23 March 2020, the company suspended the worker with immediate effect, pending investigation, and prohibited her from entering the office without prior approval.
The worker, by email dated 1 April 2020, vehemently denied all allegations and referred the company to her earlier explanation dated 6 January 2020.
Subsequently, by letter dated 15 June 2020, the company informed the worker that her explanation was unsatisfactory and terminated her employment with immediate effect.
Court's evaluation of conduct context
The court examined the evidence and found that the worker had been in the company's employment since August 2016.
Throughout her tenure, under the supervision of her previous superior, she had served without any record of disciplinary issues or misconduct.
The worker's work performance was deemed satisfactory, and she maintained a cordial and professional working relationship with her superior.
However, the situation underwent a distinct change following the transfer of the previous superior and the appointment of the new superior, who had previously been the worker's colleague.
The court found: "This change in reporting hierarchy fundamentally altered the dynamics of their professional interaction. What had once been a friendly association transformed into a strained superior–subordinate relationship."
The court determined that "the disharmony between the [worker] and [the superior] was most probably caused by differences in management style, communication approach, and workplace expectations."
The court noted that whilst the language used by the worker was "undoubtedly inappropriate and lacked the degree of professional decorum expected of a senior employee," the question was "whether these expressions, when viewed objectively and in their proper context, rise to the level of insolent or disrespectful conduct justifying dismissal."
The court found that "while the [worker]'s words were discourteous and demonstrated poor judgment, they were made in the context of a strained working relationship following a change in leadership, where the [worker] perceived herself as being unfairly accused and subjected to unwarranted disciplinary scrutiny."
Proportionality assessment and evidentiary gaps
The court applied legal principles from established cases, noting that insolent language "means language which is offensive and contumacious. The test is whether the use of such language tends to lower the dignity of the superior officer."
However, the court also emphasised that "rudeness or insolence may constitute just cause for dismissal only when the conduct is so serious that it destroys the foundation of trust and confidence in the employment relationship."
The court found a significant evidentiary gap, stating: "The Company's omission to call [its senior employee], who was directly involved in the PIP discussion and could have clarified what transpired, is a significant evidentiary gap."
Without this testimony, the court was unable to conclude conclusively that the worker's conduct was of such gravity as to justify summary dismissal.
The court found that the worker's emails, "though strongly worded, appear to have been defensive reactions rather than deliberate attempts to undermine or discredit her superior's authority."
The court emphasised that "workplace conflict arising from personality clashes and differing management styles must be distinguished from willful misconduct."
The evidence disclosed that the breakdown in the working relationship "was, in the Court's view, most probably the result of differences in management style, communication approach, and workplace expectations, which gradually gave rise to mutual frustration."
Final determination and compensation award
Applying the principle of proportionality, the court concluded: "the [worker]'s conduct, while amounting to insolent and disrespectful behavior, did not reach the level of insubordination that would justify dismissal."
The court found that "The [worker]'s expressions of frustration, albeit expressed inappropriately, were not accompanied by defiance of lawful instructions, refusal to perform duties, or any act that disrupted operations."
The court concluded: "The punishment of dismissal was disproportionate to the nature of the misconduct established. The breakdown in communication between the [worker] and her superior, though serious, was not irreparable at that point in time and did not, on balance, justify the termination of her employment. The dismissal was therefore without just cause or excuse."
However, the court found the worker was not entirely blameless, noting that "the [worker]'s use of discourteous and improper language towards her superior, though provoked by a strained working environment, was nonetheless inconsistent with the standard of professionalism expected of a managerial officer."
The court determined that reinstatement was not suitable and awarded four months' salary as compensation in lieu of reinstatement for approximately four years of service, plus 24 months' backwages, with a 30% deduction for contributory misconduct.
The final order stated: "The Court orders that the Company pays the [worker] the total sum of RM488,334.00 less any statutory deductions within thirty (30) days from the date of this Award."
