An Employee Criticises the Company on Social Media: How Far Can the Employer Go?

One employee posts on Facebook that the company never pays full overtime. Another posts a photo of an internal document showing customer names. A third insults a supervisor by name. All three are "posts criticising the company", yet the law, and what the employer can do, differ greatly. If every case is answered with immediate dismissal, the employer may end up as the defendant.

This guide is written for employers and HR. It covers sorting the post, capturing evidence lawfully and investigating within limits. Handling a post that is genuinely defamatory is covered in the online defamation guide, internal fraud investigations in the guide to investigating employee fraud and embezzlement, and trade secrets after an employee leaves in the guide to customer lists and trade secrets.

The core answer

First sort the post. A measured complaint about pay or working conditions is not misconduct in itself. Disclosure of secrets, personal data of customers or colleagues, false statements that harm the company and insults aimed at named colleagues are matters an employer can act on, in proportion to their seriousness. Capture only what you may lawfully see, invite the employee to explain, and choose a proportionate measure.

The rule (Thai law). An employer with ten or more employees must have work rules under section 108 of the Labour Protection Act B.E. 2541. Dismissal without severance pay is possible only for the causes in section 119, which include breach of work rules or lawful and fair orders after a written warning (section 119 (4)). Section 583 of the Civil and Commercial Code allows dismissal without notice where the employee commits serious misconduct or acts in a way unbecoming to the proper and honest performance of duties. Even so, if the Labour Court finds the dismissal unfair, the employee may claim compensation under section 49 of the Labour Court Establishment and Procedure Act B.E. 2522.

Our practical view. The common mistake is an employer who panics at a post and dismisses at once, before working out what the post is about, whether it states fact or opinion, and whether the evidence is complete. A safer course is to spend a day or two classifying the post, preserving evidence and then choosing the measure.

Hypothetical example. A mid-sized transport company in Khon Kaen. An employee, Napa, posts publicly: "I work overtime every day and the overtime pay is never complete." Another employee, Theeraphong, posts in a closed group that the company "ships fake goods to customers", which is untrue, and also posts a work order showing customer names and phone numbers. We use these two events throughout.

1. What kind of post is it?

One post can fall into several categories. Theeraphong's post contains both a false statement and customers' personal data, so assess each part separately.

2. Do work rules cover posts made off duty?

Work rules under section 108 concern work and discipline. They do not give the employer control of the employee's entire private life. A post made after hours or from a personal phone can still relate to work if it bears directly on confidential information, customer data, colleagues or the employer's reputation. A clear and proportionate rule on those matters is fine. A blanket rule such as "no mention of the company on social media at all" is hard to defend, and a court may see it as unfair when it is applied to complaints about conditions. If your company has no rule yet, see section 7.

Section 119 (4) requires a lawful and fair rule or order and a written warning. The warning remains valid for one year from the date of the breach. Serious cases need no prior warning, but they must be genuinely serious.

3. When can the employer dismiss, and when is it risky?

• A critical post only. An employee who criticises pay or working conditions can often argue this is not serious misconduct, so dismissal risks being found unfair. The court looks at the reason, the wording and proportionality.
• Breach of work rules. Dismissal without severance is possible under section 119 (4) after a prior warning and a repeat breach within a year, or in a serious case not needing a warning.
• Serious misconduct. Section 583 allows dismissal without notice, but the dismissal can still be tested for fairness under section 49, and the absence of notice does not always mean no severance is due; check section 119 as well.
• Applied to the example. Napa's post should start with a check of whether her complaint has substance. Theeraphong's disclosure of customer data and false statements can support disciplinary action, but establish the facts and give him a chance to explain first.

For general dismissal rules see the guide to dismissal rights, and for how measures look when workers raise collective demands see the guide to preparing for employee collective demands.

4. The criminal and civil side, briefly

• Defamation. Section 326 of the Criminal Code covers imputing something to another person, before a third party, in a way likely to damage their reputation. Section 328 aggravates it when done by publication, which includes a public post. Section 329 protects opinions in good faith in the situations it lists, such as protecting one's own legitimate interest, and section 330 allows proof of truth, except for personal matters where proof does not benefit the public. The outcome depends on the facts.
• Civil liability. Sections 420 and 423 of the Civil and Commercial Code allow damages for spreading untrue statements that harm reputation, where the speaker knew or ought to have known they were untrue.
• Computer Crime Act section 14. After the 2017 amendment it is not meant for ordinary defamation. It targets dishonest or deceptive input of false computer data under the conditions the law sets, and should not be invoked reflexively.
• Trade secrets and PDPA. The Trade Secrets Act B.E. 2545 protects information that is genuinely secret and kept so by the employer. The PDPA applies to the company as controller of customer and employee data.
• Important. Do not use a criminal complaint as leverage in an employment dispute. It can escalate the matter and affect how the Labour Court sees the employer. If legal action is really contemplated, take advice first, and see the online-defamation guide linked above.

5. Capturing evidence lawfully

Capture only what the employer can lawfully see, such as a public post or one voluntarily forwarded by someone entitled to view it.

• Take a screenshot showing the URL, date and time, account name and who could see it (public, friends only, or closed group).
• Have two people record it and keep the original files, noting who captured it and when.
• Capture the post, comments and visible reach before the post is deleted.
• Do not log into the employee's account, demand a password, force the employee to unlock a phone, or create a fake account to enter a closed group. Unlawful access to another person's system or data may breach sections 5 to 7 of the Computer Crime Act, and taking or using more data than necessary raises PDPA issues. See the guide to PDPA and employee data.

Post evidence record (sample; adapt to your case)
Case no.: ______   Date recorded: ____ Time: ____
Recorder 1: ______   Recorder 2: ______
Platform: ______   URL: ______
Posting account: ______   Date and time of post: ______
Who could see it: [ ] public [ ] friends only [ ] closed group (name ______ )
Who passed the post to the company, and how: ______
Summary of content (no interpretation): ______
Likes / shares / comments visible: ______
Original files stored at: ______   Custodian: ______

6. Investigating within limits

1. Invite the employee to explain in writing, stating which post and which issue is being considered.
2. Ask about the facts. Do not ask about private matters unrelated to the post, and do not demand to see the phone.
3. Check how true the post is. If the complaint has substance, fix the root cause in parallel.
4. Choose a proportionate measure: first a request to remove or correct, then a warning, and dismissal only in serious cases.
5. Do not automatically punish colleagues who merely liked or shared the post. Look at the content, anything they added and their role.
6. If you must suspend during the investigation, see the guide to suspension during a disciplinary investigation for pay.

7. What a sensible social-media clause says

It should: ban disclosure of confidential information and personal data of customers and colleagues; ban posting facts known to be false; ban harassing or insulting others; say that personal opinions are not the company's when a job title is used; give an internal complaint channel; and set graduated sanctions.

It should not: ban any mention of the employer, require handing over passwords or phones, or treat complaints about pay as an offence.

Clause __ Use of social media
(1) Employees must not disclose the employer's confidential information or personal data of customers or colleagues.
(2) Employees must not post statements about the employer or others at work that they know to be false.
(3) Employees must not insult or harass others.
(4) Good-faith expression of views about working conditions is not in itself a breach, and employees may also use the internal complaint channel.

8. Checklist

Before deciding

• Classify the post using the table in section 1
• Check whether the complaint has substance
• Check the work rules and earlier warnings

Evidence

• Screenshot with URL, date, time and who could see it
• Two people record it and the originals are kept
• No account access, no password demand, no fake account

Investigation and measure

• Invite a written explanation
• Choose a proportionate measure
• Do not automatically punish those who only liked or shared
• Do not use a criminal complaint as leverage

Further reading

• Online defamation — what to do when a post is genuinely defamatory
• Investigating employee fraud and embezzlement — how to investigate within limits
• Customer lists and trade secrets — when confidential information gets out
• PDPA and employee data — collecting and using employee data
• Dismissal rights — the risks of dismissal
• Suspension during a disciplinary investigation — pay while suspended

A critical post is not always misconduct. Sort the post, capture evidence lawfully, hear the explanation, and choose a measure in proportion.

We help review and draft work rules and social-media policies, set up investigation and evidence procedures, and advise before a warning or dismissal is issued. For an initial consultation, call +66 92 254 2045 or send us the details. See also labour compliance and employee investigations.

This guide is published by Suwanvara Law Firm — a Khon Kaen law firm established in 1986. General information only, not legal advice on a specific matter.