Colombo District Judge T.D. Gunasekera vacated the enjoining order issued previously against Hatton National Bank PLC (HNB) implementing its Social Media Policy, considering the strong objections raised by the counsel appearing for HNB when the case was taken up for inquiry on November 12, 2015.
This case had been filed by the Ceylon Bank Employees Union (CBEU) challenging the Social Media Policy that had been introduced by HNB last year stipulating procedure and conduct when employees of the bank engage in social media. The CBEU has specifically requested court to annul the decision taken by HNB recently, to take disciplinary action against three of its employees who are members of the CBEU for acting in violation of the said Social Media Policy.
Romesh De Silva, PC who appeared for the defendant HNB made submissions in court stating that the subject Social Media Policy had been introduced by HNB in February 2014 and was in operation without any objection from the plaintiff union until disciplinary action was initiated against three of their employees recently for violation of the said Social Media Policy.
The subject policy is a proper and justifiable document which is intended to safeguard the interest and the image of the bank and applied in situations where employees of the defendant bank engage in social media in their official capacity only and not in their private capacity. He further stated that the Social Media Policy of the bank requires approval from the bank’s management in cases where employees act on behalf of the bank, mentioning the name of the bank and also specifically when providing details of products and services of the bank in social media. He stated that many organisations both local and abroad including Bank of England have similar Social Media Policies applicable to their employees to safeguard the interests of such organisations.
Quoting two separate Supreme court judgments of Chief Justice Sharwananda and Justice Soza, De Silva PC stated that although the constitution of the country guarantees freedom of expression and publication as fundamental rights, such rights are not absolute and hence should be used without infringing the rights and freedom of others.
The subject employees of the defendant bank have posted certain comments detrimental to the interest and the image of the HNB in an open domain website operated by the CBEU. Such adverse comments posted in a website open to the public can have a negative impact on the business of the defendant bank which is a leading financial institution in the country.
He further submitted that the plaintiff CBEU had suppressed from court the provisions available in the letters of appointment of the relevant employees which enables the bank to take disciplinary action against them in case of breach of discipline, quite apart from the provisions of the Social Media Policy.
De Silva PC also stated that the plaintiff has produced their own translation of the Social Media Policy of HNB stating that it is a document issued by the defendant bank misleading the court at the time of obtaining the enjoining order and strongly objected for any extension of the said enjoining order.
Harsha Soza PC who appeared for the plaintiff union stated that the subject Social Media Policy that has been introduced by HNB is an illegal document which violates the fundamental freedoms of employees who are members of the CBEU. He specifically stated that a summary dismissal procedure has been introduced by the bank against the employees who violate the Social Media Policy, implementation of which would bring about irreparable loss to his client.
After considering the submissions made by both the counsels the District Judge vacated the previous enjoining order issued against HNB restricting any disciplinary action being taken on the subject three employees.
In his order the District Judge stated that the defendant bank has issued show cause letters on the relevant staff members who are purported to have violated the Social Media Policy which indicates that the bank has no intention in going for any summary dismissal.
Furthermore, notwithstanding the provisions of the subject Social Media Policy in question, the defendant bank has a legal right to take disciplinary action against the relevant employees under the provisions of the individual letters of appointment which have not been disclosed to the court by the plaintiff union at the time of requesting for the enjoining order.
Also the District Judge has stated that the enjoining order requested covers a wide area of activity which may restrict even the lawful actions of the defendant bank and the plaintiff union has erred in not being specific in its request regarding the exact reason for requesting the enjoining order. The plaintiff cannot request for an enjoining order exceeding the exact requirement and covering a wide scope of activity without being specific in their requirement.
Accordingly, the enjoining order was vacated and the case was postponed for 25th January 2016 for filing of objections.