Can employees disobey the transfer arrangement?

Can employees disobey the transfer arrangement?

What you need to know, turn to question 8! The rights and interests of workers guarantee the employment autonomy of employers.

1. Should employees unconditionally obey the transfer decision of the employer?

Jobs usually determine the content of workers' work, which is relatively stable and predictable. At the beginning of signing a labor contract, the laborer takes the name and content of the job as an important basis for deciding whether to sign a contract. After the signing of the labor contract, the laborer and the employer changed from the "equal" position at the beginning of the contract to the "subordinate relationship" in identity, and this relationship between management and being managed also put the laborer at a relative disadvantage.

In order to prevent the employer from abusing its dominant position, the labor law limits the employer's right to change the labor contract within a reasonable range 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 employee may change the contents of the labor contract through consultation. Changes to the labor contract shall be made in written form. The revised text of the labor contract shall be held by the employer and the employee respectively.

2. This means that in the absence of special provisions in the labor contract, job adjustment, as an important part of contract change, must meet two basic preconditions: both parties reach an agreement through consultation; Take a written form. Both are indispensable. If the employer unilaterally transfers the post without consensus, the employee has the right to refuse, and the labor contract will continue to be performed according to the original agreement. Is it valid to stipulate in the labor contract that "the post can be adjusted as needed"?

According to Article 3 of the Labor Contract Law, the conclusion of a labor contract should follow the principles of legality, fairness, equality, voluntariness, consensus, honesty and credibility. The labor contract concluded according to law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

This means that if the labor contract stipulates that "employees' jobs can be adjusted according to needs", it should be understood as the true meaning of both parties, and the terms of the labor contract are binding and both parties should perform them. Even so, the agreement in the labor contract does not mean that the employer can unilaterally adjust the post at will. Employers should still abide by the following rules when adjusting their jobs.

Post adjustment must be fully reasonable, and the adjusted post should be related to the post before adjustment. For example, it is reasonable to transfer the sales manager to the sales supervisor, but it may be unreasonable to transfer the financial manager to the sales position.

After the workers are transferred, they can be competent for new jobs. If not, the employer should also be responsible for training and education, so that workers can adapt to new jobs. Before the adjustment, we should do our best to inform and explain the obligations, so as to be justified.

3. The laborer is not competent for the existing job, can he be transferred at will?

Incompetence is a common reason for employers to change jobs. According to the provisions of Article 40 of the Labor Contract Law, if a laborer is not competent for the job and is still incompetent after training or job adjustment, the employer may terminate the labor contract after notifying the laborer in writing 30 days in advance or paying the laborer an extra month's salary. This article indirectly stipulates that the employer has the right to unilaterally adjust the post on the premise that the worker is not competent for the existing post.

However, this right is not free from any constraints, and the employer should grasp it. The employer should have sufficient evidence to prove that the employee is not qualified for the existing post, that is, the employee really cannot complete the tasks agreed in the labor contract according to the requirements of the unit, or the workload of employees in the same type of post needs to be proved by documents such as "job description" and "target responsibility letter" in practice.

The adjusted post should be adapted to the labor ability and skills of the workers, and maintain a certain rationality.

4. Can workers be regarded as absenteeism if they refuse to go to work because they don't obey the post adjustment?

Because job transfer often involves the vital interests of workers (such as wage standards), they are often resisted by workers, and some explicitly refuse. In the case that the attitude of the unit is also relatively tough, the most common practice of some workers is to "refuse to go to work on the grounds that the transfer of posts is unreasonable".

In this case, can the employer punish the workers in the name of "absenteeism" or terminate the labor contract on the grounds of "serious violation of discipline"? First of all, the exercise of the right to terminate the contract in the name of absenteeism needs to be based on two important premises.

The post adjustment is legal and reasonable, with legal and factual basis. If the post adjustment is unreasonable, its punishment will lose its first basis.

The behavior of workers belongs to "absenteeism". Absenteeism generally refers to: except for cases where the leave formalities cannot be fulfilled due to force majeure, the workers do not fulfill the leave formalities according to the regulations and do not go to work on time.

Therefore, employers should pay attention to the rationality and legitimacy of post adjustment for disobedient workers, and at the same time, don't rush to make disciplinary decisions. In the case of disputes between both parties (especially if the laborer has applied for arbitration), unilateral punishment will often be deemed invalid.

5. Is it legal to stipulate in the confidentiality agreement that "the company has the right to transfer the post before the confidentiality contract is terminated or dissolved"?

According to Article 23 of the Labor Contract Law, the employer and the employee may agree in the labor contract to keep the business secrets of the employer and confidential matters related to intellectual property rights.

The content of the confidentiality clause should belong to the autonomy of the parties. If it is stipulated in the contract that the employee who knows the business secrets has the right to adjust his post some time before proposing to terminate the labor contract, such an agreement is binding on all parties to the contract and the employee must perform it.

In addition, according to Article 2 of the Notice of the Ministry of Labor on Several Issues Concerning the Mobility of Enterprise Employees, when the employing unit and the employees who hold business secrets agree on matters related to keeping business secrets in the labor contract, they can agree to adjust their jobs and change the relevant contents of the labor contract within a certain period of time (not more than six months) before the labor contract is terminated or after the employee proposes to terminate the labor contract, which also provides a legal basis for the transfer of confidential jobs agreed in the contract.

6. Can those who are not qualified for the job be paid at the same time?

One of the purposes of post adjustment by employers is to adjust wages reasonably, otherwise, post adjustment will lose its meaning to the unit. According to the law, when a worker is incompetent, the employer has the right to adjust his post reasonably, but can the employer adjust the wages of the worker at the same time?

Judging from the existing legal provisions, labor remuneration is also an important part of labor contracts. Does the change of its amount need to be negotiated before it can take effect? What if the workers agree to the post adjustment but disagree with the salary adjustment? Does post adjustment mean an inevitable salary adjustment? Post management includes post salary management, and post changes are often accompanied by changes in post salary standards. According to the law, the employer can adjust the position of the employee on the premise that he is incompetent, and the transfer should be complete post management right, including fulfilling the new post salary standard and new assessment methods.

If a worker is transferred to a new post because he is not competent for the original job, his salary should be determined according to the standard of the new post, otherwise it will violate the basic legislative concept of "equal pay for equal work". On the other hand, in order to prevent the employer from abusing the right of salary adjustment, the salary adjustment operation should be based on the following premises.

There are clear job grades and corresponding salary standards. If there is no system regulation and contract agreement, the wage standard after post adjustment should be determined through consultation and cannot be decided unilaterally by the employer. Determine the new position and salary standard in writing with employees.

7. Can the employing unit with post appointment system adjust its post at will?

The separation of post and employment was originally a post management measure of government agencies and institutions, aiming at giving full play to the enthusiasm of employees through competition for posts. Usually, there is no clear position in the employment contract, only a "post appointment letter" is agreed. Compared with the unit whose position is clearly specified in the labor contract.

It is not illegal for a unit that implements the separation of post and employment to convert the agreed content into the specified content, that is, to return the post confirmation right to the unit. It should also belong to the category of the employer's right to operate independently. Since the employee recognizes the position through the letter of appointment, it should be implemented by reference.

However, does this mean that those employers who implement the separation of posts and employment are not subject to any restrictions on their unilateral transfer? The answer is no, the separation of posts and employment by employers should be based on clear post competition, employment standards and management methods for waiting for posts. Without these preparations, it is very likely that the unilateral issuance of the letter of appointment will cause the loss of workers' interests.

Under the premise of no system, the appointment letter for the first post should be regarded as an important part of the labor contract, and the post cannot be changed without consensus.

8. Can the cancellation of the department be a legitimate reason for the employer to unilaterally transfer posts?

The Labor Contract Law stipulates that if the labor contract cannot be performed due to major changes in objective conditions, and the employer and the employee cannot reach an agreement on changing the labor contract through consultation, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying an extra month's salary. According to this regulation, many employers believe that the disappearance of posts caused by the cancellation of departments should be a major change in the objective situation, and units can not only transfer posts, but also terminate contracts. Is this understanding correct?

According to the "Ministry of Labor on

Therefore, the definition of objective situation should be based on "non-subjective factors". Regarding the revocation department, it should be defined according to the reasons for revocation, such as merger and division of enterprises, which are not caused by subjective reasons of enterprises, but by objective reasons; If the management unilaterally decides to cancel the department, it should be understood as the category of "independent management of enterprises", which is not an objective situation.