Be careful when dismissing employees on the grounds of "post transfer" and "absenteeism"

He melted my life2022-09-23 10:18:06

Employees who do not obey long-distance cross-regional transfer are dismissed by the unit, which often occurs in the practice of labor relations management in many enterprises.When the company is dissatisfied with the employees, can the company dismiss employees with "post transfer" as the pre-order and "absence from work" as the follow-up reason?Now use a case of dismissing an employee on the grounds of "transfer and absenteeism" to interpret this practice.

Introduction:

Chen Mou is an employee of a technology company in Zhejiang. He has been working in the company's engineering maintenance position since July 2007 and has been working in the Shaoxing area.In March 2022, due to the change of the leadership of the company's Shaoxing region, some employees will be adjusted according to the requirements of the new leadership.Chen belongs to the range of employees that the new leader intends to resign.Since the negotiation between the two parties failed, the company sent a "post transfer notice" to Chen on the grounds of business adjustment on March 22, 2022: the position of Chen was adjusted to the maintenance supervisor in Hangzhou. After the transfer, the original salary level remained unchanged, and the requirementChen must report to the headquarters in Hangzhou on March 29, 2022 at the latest; those who fail to arrive at the new post within the time limit will be regarded as absent from work.Because the transfer did not get Chen's consent, Chen replied that he had been working in Shaoxing for more than ten years, and now the transfer will have a serious impact on his life, so he refused to transfer.After the reply, Chen continued to work at his original post.On April 7, 2022, after repeated urging, the company terminated the labor contract with Chen on the grounds that Chen did not report to his new position and was absent from work for 6 consecutive days, which was a serious violation of the company's rules and regulations.

Chen filed a labor arbitration in this regard, demanding that the company pay more than 200,000 yuan in compensation for the illegal termination of the labor contract.During the trial, although the company stated that the work place agreed in the "Labor Contract" of both parties is within the scope of Zhejiang and the employer has the right to adjust the employee's job position according to the needs of the work, the company also made a defense against Chen's job adjustment because of the need for business adjustment.However, in the end, the labor arbitration and the court of first and second instance all supported Chen's claim, and the company paid Chen a compensation of more than 200,000 yuan.

Dispute focus:

The focus of the dispute in this case is that the company unilaterally sent Chen a "Post Transfer Notice" requesting that the two parties failed to negotiate in advance.Is his transfer legal?Is it legal for the company to unilaterally terminate the labor contract on the grounds of violating the company's rules and regulations because Chen did not arrive at the new position in time?

Lawyer's Analysis:

Lawyer Lan Yanxia, ​​a partner of Zhejiang Wulian Law Firm, said: In the event that the two parties failed to negotiate in advance, the company unilaterallyIt is illegal to send a "Post Transfer Notice" to Chen to request him to be transferred.It is best to negotiate with the employees when the company transfers posts.Without the consent of the employees, the company's unilateral adjustment of positions will be considered invalid to a large extent.The company also terminates the labor contract on the grounds that the employee does not agree to be considered absenteeism, and often faces the legal risk of paying compensation for illegal termination of the labor contract.

Generally, the rationality of a job transfer should be reviewed around the following factors: 1) Whether there is an objective justification for the job transfer; 2) Whether there is a reduction in wages; 3) Whether there are adverse changes to working conditions; 4) Other matters that have a significant impact on workers.In this case, Chen had been working in the Shaoxing area from his entry in 2007 until the termination of the contract, so he had reasonable expectations for the location of his work in Shaoxing.The company decides at its own discretion to adjust his post to Hangzhou area, which is unfavorable to Chen's working conditions, and Chen has the right to refuse.In the case that Chen continued to work in Shaoxing, the company violated the labor law to terminate the labor contract on the grounds of absenteeism. According to the provisions of Article 87 of the "Labor Contract Law", the company should pay Chen twice the economic compensation.compensation.

Lan Yanxia said that when some companies are dissatisfied with their employees, they dismiss employees with "post transfer" as the pre-order and "absence from work" as the follow-up reason to avoid illegally dismissing double the economic compensation.compensation.This approach has great legal risks.If the company really needs to transfer employees, it should try to reach an agreement with the employees and confirm it in writing such as the "Reassignment Agreement".If the employee is unwilling to be transferred or really needs the employee to leave, they can negotiate with the employee and try to negotiate the termination of the labor contract between the two parties within the scope of economic compensation.

(According to Zhejiang Workers Daily News, Zhejiang Workers Daily reporter Li Guofeng)
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