Can an employee refuse a transfer? Transfer 8 questions and answers

In the actual employment situation, the transfer of salary has become a high incidence of labor disputes, the following is the transfer of salary disputes eight summary of frequently asked questions.

1. Should a worker unconditionally comply with a transfer from one employer to another? The job usually determines the content of the worker's work, with relative stability and predictability. At the beginning of the labor contract, the worker takes the name and content of the job as an important basis for deciding whether or not to sign the contract.

After the signing of the labor contract, the workers and the employer from the contracting of equal status into the status of subordinate relationship, this management and management of the relationship also makes the labor side of the relative disadvantageous position. In order to prevent the employer from abusing its dominant position, the labor law limits the right of the unit to change the labor contract to a reasonable model, and puts forward strict requirements for the change of the labor contract.

Article 35 of the Labor Contract Law stipulates that the employer and the worker can change the content of the labor contract by consensus. Changes to the labor contract shall be in writing. The text of the changed labor contract shall be signed by both the employer and the worker.

This means that, in the absence of special provisions in the labor contract, the adjustment of posts as an important part of the contract changes, to meet the two basic prerequisites: the consensus of the two sides; in written form. Both are indispensable, if the employer does not unilaterally adjust the post without consensus, the worker has the right to refuse, and the labor contract should continue to perform according to the original agreement.

2. Is it valid for the labor contract to stipulate that the transfer can be made according to the needs? According to the labor contract law, article 3, the conclusion of labor contracts, should follow the law, fairness, equality, voluntariness, consensus, honesty and credit. The labor contract concluded in accordance with the law is binding, the employer and the worker shall perform the obligations agreed upon in the labor contract.

This means that, if the labor contract agreement, according to the need to adjust the position of the employee, should be understood as the true meaning of the two sides, the terms of the labor contract is binding, the two sides should be performed. Even so, the agreement of the labor contract does not mean that the employer can be arbitrary unilateral transfer.

In the operation of post adjustment, the employer should still comply with the following rules.

The adjustment of posts must be fully reasonable, and the adjusted post should be related to the post before the adjustment. For example, adjusting a sales manager to a sales supervisor can be considered reasonable, while adjusting a financial manager to a sales post may lack reasonableness.

The worker is transferred to the new job, if not competent, the employer should also be responsible for training and education to adapt to the new job, the adjustment should be carried out before the necessary notification and explanation of the obligation to be justified.

3. Can a worker be transferred at will if he or she is not competent for the job? Incompetence is a common reason for employers to transfer workers. According to Article 40 of the Labor Contract Law, workers can not perform their jobs, after training or adjustment of jobs, still can not perform their jobs, the employer can terminate the employment contract after giving thirty days' notice in writing to the workers or paying them one month's salary in addition.

This article indirectly stipulates that the employer has the right to unilaterally transfer a worker to another position if the worker is incompetent to perform the current position. However, the right is not free from any constraints.

The employer in the operation of incompetence, transfer should be grasped by the employer should have sufficient evidence to prove that the workers are incompetent to perform their current jobs, that is, the workers really can not according to the requirements of the unit to complete the tasks agreed in the labor contract, or the workload of the same type of job, in practice, the need to "job descriptions In practice, it needs to be supported by "job description", "target responsibility" and other documents; adjusted positions should be compatible with the labor capacity and skills of the workers, to ensure a certain degree of reasonableness.

4. Can a worker be considered absent without leave if he/she refuses to go to work without being transferred? Because the transfer often involves the personal interests of the workers, such as the pay scale, so it is often resisted by the workers, some of them clearly expressed their refusal, in the case of the unit's attitude is also relatively strong, some workers are the most common practice is to use the transfer of unreasonable reasons for refusing to go to work.

In this case, can the employer take disciplinary action against the worker in the name of absenteeism, or terminate the labor contract for serious disciplinary reasons?

First of all, the exercise of the right to terminate the contract in the name of absenteeism needs to be based on two important prerequisites: the post adjustment is legal and reasonable, and there is a legal basis and factual basis. If the post adjustment is not reasonable, the disciplinary action will lose the basis of the first.

The behavior of the worker is "absenteeism". Absenteeism generally refers to: except for force majeure factors, it is impossible to fulfill the leave procedures, the worker does not follow the regulations to fulfill the leave procedures, and do not go on and off work on time. Therefore, for workers do not obey the transfer, the employer should pay attention to grasp the reasonableness and legality of the transfer, while not in a hurry to make a decision to discipline, in the two sides are in a state of dispute, especially when the workers have applied for arbitration, the unilateral act of discipline is often recognized as invalid.

5. Is it lawful for the company to transfer a confidential employee before the termination of his/her contract under the confidentiality agreement? According to Article 23 of the Labor Contract Law, employers and workers can agree in the labor contract to keep the employer's trade secrets and intellectual property rights related to confidentiality matters.

The content of the confidentiality clause belongs to the autonomy of both parties, if the contract stipulates that the company has the right to adjust the position of the worker who holds the trade secrets for a certain period of time before the termination of the labor contract, such an agreement is binding on the parties to the contract, and the laborer must perform.

According to the "Ministry of labor on the flow of enterprise workers," the second article of the notice, the employer and the mastery of commercial secrets of the workers in the labor contract agreed to keep commercial secrets related matters, can be agreed in the labor contract before the termination of the termination of the labor contract or the worker proposed to terminate the labor contract for a certain period of time (not more than six months) to adjust their jobs, change the relevant content of the labor contract, which also provides a legal basis for the contractual agreement on matters of confidential transfer.

6. Can the salary be adjusted at the same time as the transfer of incompetent work? One of the purposes of the employer's transfer is to reasonably adjust the salary, otherwise the adjustment of the post for the unit will lose its meaning. For the workers are incompetent, the law provides that the employer has the right to reasonable four posts, but the employer transfer at the same time can adjust the salary of the workers?

From the point of view of the existing legal provisions, labor compensation is also an important part of the labor contract, the amount of change requires consensus to take effect? What if a worker agrees to a transfer but does not agree to a cress adjustment?

Does the word "post" imply a salary adjustment? The law provides that an employer may transfer a worker to a new position if the worker is incompetent, and the transfer should be a complete transfer of the right to manage the position, which includes the right to implement a new salary standard for the position, a new assessment method, etc. The law also provides that an employer may transfer a worker to a new position if the worker is incompetent. Laborers are adjusted to new positions because they are incompetent at their original jobs.

The salary should be determined according to the standard of the new post, otherwise it is against the basic legislative idea of "equal pay for equal work". But on the other hand, in order to prevent the employer's right to salary adjustment of the Pan, in the salary adjustment operation should be based on the following premise: there is a clear job grade and salary corresponding standard. If there is no system provisions and contractual agreements, after the transfer of the salary standard should be determined by Hipao, and can not be unilaterally determined by the employer. Determine in writing with the employee the new position and remuneration standards.

7. Can departmental cancellation be a legal reason for the employer to unilaterally transfer? The Labor Contract Law stipulates that, due to significant changes in the objective situation, resulting in the labor contract can not be performed, the employer and the worker consultation, failed to reach an agreement on the change of the labor contract, the employer 30 days in advance to notify the worker in writing or pay an additional month's salary, the employer can terminate the labor contract.

In accordance with this provision, many employers believe that the department canceled by the conductor of the disappearance of the post, should belong to the objective situation has changed significantly, the unit can not only transfer the post can also terminate the contract, this understanding is correct?

According to the "Ministry of labor on & lt; Chinese people *** and back to the labor law & gt; a number of provisions of the note" of the provisions of the so-called "objective circumstances" refers to: the occurrence of force majeure or the emergence of all or part of the terms of the labor contract can not be fulfilled in other circumstances, such as the enterprise relocation, merger, the transfer of assets, etc., and exclude the "employer", "the employer", "the employer's job", and "the employer". The so-called "objective circumstances" refers to force majeure or other circumstances that make it impossible to fulfill all or part of the terms of the labor contract, such as relocation, merger, transfer of assets, etc., and excludes the situation of "the employer is on the verge of bankruptcy during the period of legal rectification or serious difficulties in production and operation.

It is clear that the definition of objective circumstances should be based on the criterion of "non-subjective factors". On the cancellation of the department, should be defined according to the reasons for the cancellation, such as merger, separation, etc., such cases are not caused by the subjective aspects of the enterprise, the cancellation of the objective situation; If the management unilaterally decided to cancel the department, it should be understood as the "business autonomy," Fanrui, does not belong to the objective situation.

8. After the re-employment of workers transferred to the post, can we re-agree on the probationary period? Workers leave their jobs and return to the original employer is not uncommon, especially in the high turnover rate of restaurants, clothing, fog sales industry, etc., for the same worker into the same enterprise for the second time, the employer in the adjustment of the workplace after the probationary period can be agreed?

Referring to the "Ministry of Labor on the < Chinese people's **** and the State Labor Law > a number of provisions of the instructions", "trial period" applies to the first employment or re-employment of workers to change the labor position or type of work. In addition, according to the Ministry of Labor's Circular on Several Issues Concerning the Implementation of the Labor Contract System, the employer can only give a trial period once to the same worker whose job position has not changed.

Therefore, two types of cases should be distinguished: for workers who are rejoined but engaged in the original job, the employer shall not set up another probationary period.

For workers who rejoin but are engaged in other kinds of positions, the employer can agree on a probationary period again according to the duration of the contract. However, Article 19 of the Labor Contract Law stipulates that the same employer and the same worker can only agree on a trial period once. This fundamentally restricts the employer to repeat the agreement on the trial period of behavior, even for the post has been adjusted to re-employment behavior, the trial period agreement is still prohibited, which is more stringent than the original provisions.