Answer: Position transfer is a situation of employment variation where an employee remains their employment, however changes the position to another role. It is a complex legal issue and involves a delicate balance between employees¡¯ employment security, career development, and employers¡¯ management autonomy and business interests. The lawfulness of a position transfer requires substantive and procedural lawfulness during the process.
According to the existing court decisions throughout the country, the substantive legality of an employer transferring employers’ position depends on the comprehensive consideration of the following factors: available agreement(s) on position transfer (for example, a scope of positions),1Chi Yanwei, Hebei Huadian Shijiazhuang Yuhua Thermal Power Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute, Shijiazhuang Intermediate People’s Court of Hebei Province Civil Judgment (2018) Ji 01 Minzhong No.13665. The two parties’ employment contract stipulated that the company had the right to transfer the positions of the employee. The court held that the employment contract did not specify the position of the employee and that there was little difference in the working environment and treatment of the position to be transferred, so the transfer was reasonable. The labor dispute case of Zhang Jianzhong v. Nantong Yide Logistics Co., Ltd., Jiangsu Provincial People¡¯s High Court Civil Ruling (2017) Sumin Shen No.4822. The employment contract stipulated ¡°driver¡±, and the court held that the employer’s reassigning the employee to different driving positions does not constitute position transfer.rationality and necessity of the employer’s production and operation needs, whether the position transfer is insulting and punitive, 2Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Qin Zhong and Dongyang Rubber and Plastics (Guangzhou) Co., Ltd. (2018) Yue Min Shen No.6677, Civil Ruling of Guangdong Provincial People¡¯s High Court. ¡°The employer transferred the position of the employee due to the organizational restructuring, did not reduce the wages, nor was it insulting and punitive, so the transfer was legal.negative impacts of the impugned position transfer on the employees includes wages, commuting costs, etc., whether the employee’s personal situation is taken into account,3Wang Zhongwei, Guangzhou FAW Bus Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2021) Yue 01 Min Zhong No.2228. In the case, the employer transferred the employee from a bus driver to a minibus driver due to the business practice of routing position transfer, and the court held that the employer had considered the employee’s personal situation, and the treatment did not change, so the transfer was legal. Civil Judgment of the Second Instance of the Labor Dispute between Beijing Pinggu Grain and Oil Industry and Trade Co., Ltd. and Cui Dongyan Civil Judgment of the Third Intermediate People’s Court of Beijing (2022) Jing 03 Min Zhong No.11629. ¡°No party to the employment contract has the right to unilaterally change the conditions of the employment contract, although the employer may, according to the needs of production and operation, exercise the right of appropriate unilateral position transfer of workers, but the transfer should be reasonable, that is, the transfer should take into account the needs of production and operation or the individual ability of workers, the wage level after the transfer being equal to that of the previous position, the transfer being not insulting and punitive, and the transfer not increasing the labor cost of workers.¡±and whether the employee has actually accepted and both parties have actually fulfilled the contract of the changed position (including actual work and wages payment).4Luo Haibo, Changsha Yicai Human Resources Consulting Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2017) Xiang 01 Min Zhong No.8280. The employee’s wage was reduced after medical care leave expired and he worked for nearly a year, and thus the court did not support the claim that the employer¡¯s wage reduction violated the law.The general principle is to compare the employee¡¯ employment security, career development and the employer¡¯ management autonomy and business interests to determine the lawfulness of a position transfer.
On the other hand, the employer should abide by procedural lawfulness in dealing with position transfers of employees. Employers should adopt a fair, reasonable, and good-faith attitude to deal with position transfer, especially for employees who are not competent for their work for special reasons, such as disability after medical care leave or expiration of paid work injury leave, to maintain good faith. Employers should inform employees of the proposed position transfer, reasons of the transfer, and consider the employees¡¯ view, rather than treat them simply, roughly, and arbitrarily, or even dismiss them.5Hunan Bus Public Transport Co., Ltd., Zhou Lixin Labor Dispute Retrial Review and Trial Supervision Civil Ruling Hunan Provincial People¡¯s High Court Civil Ruling (2019) Xiang Min Shen No.707. The employee was not competent for the work after the expiration of the medical care leave, and the employer terminate the employee on the ground of the employee¡¯s serious violation of company rules because the employee did not go to work during the negotiation process. The court held that the employer should communicate in good faith with humanistic care, and that the forced dismissal was illegal.Accordingly, employees should also maintain a good-faith attitude of communication, rather than relying on health reasons for capricious absenteeism.6Tong Jie, Liaoning Anji United Automobile Logistics Co., Ltd. Labor Dispute Retrial Review and Trial Supervision Civil Ruling Liaoning Provincial People¡¯s High Court Civil Ruling (2019) Liao Min Shen No.5984. After the expiration of the employee’s medical care leave, the employer issued seven work notices, but the employee ignored them and continued to be absent from work, and the court found that the employer¡¯s dismissal was legal.
The lawfulness of position transfer of employees has an important impact on the employer. If the transfer is legal, the employee’s refusal to come to work may constitute absenteeism and may lead to lawful dismissal; if the transfer is illegal, the employee may refuse to enroll to the new position and the employer will not be able to execute normal management on the employee, resulting in the consequences of management disability.
There are several specific circumstances under which employers may legally transfer positions of their employees based on negotiation or statutory situations. Please refer to Under what circumstances can an employer transfer positions of their employees?
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- 1Chi Yanwei, Hebei Huadian Shijiazhuang Yuhua Thermal Power Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute, Shijiazhuang Intermediate People’s Court of Hebei Province Civil Judgment (2018) Ji 01 Minzhong No.13665. The two parties’ employment contract stipulated that the company had the right to transfer the positions of the employee. The court held that the employment contract did not specify the position of the employee and that there was little difference in the working environment and treatment of the position to be transferred, so the transfer was reasonable. The labor dispute case of Zhang Jianzhong v. Nantong Yide Logistics Co., Ltd., Jiangsu Provincial People¡¯s High Court Civil Ruling (2017) Sumin Shen No.4822. The employment contract stipulated ¡°driver¡±, and the court held that the employer’s reassigning the employee to different driving positions does not constitute position transfer.
- 2Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Qin Zhong and Dongyang Rubber and Plastics (Guangzhou) Co., Ltd. (2018) Yue Min Shen No.6677, Civil Ruling of Guangdong Provincial People¡¯s High Court. ¡°The employer transferred the position of the employee due to the organizational restructuring, did not reduce the wages, nor was it insulting and punitive, so the transfer was legal.
- 3Wang Zhongwei, Guangzhou FAW Bus Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2021) Yue 01 Min Zhong No.2228. In the case, the employer transferred the employee from a bus driver to a minibus driver due to the business practice of routing position transfer, and the court held that the employer had considered the employee’s personal situation, and the treatment did not change, so the transfer was legal. Civil Judgment of the Second Instance of the Labor Dispute between Beijing Pinggu Grain and Oil Industry and Trade Co., Ltd. and Cui Dongyan Civil Judgment of the Third Intermediate People’s Court of Beijing (2022) Jing 03 Min Zhong No.11629. ¡°No party to the employment contract has the right to unilaterally change the conditions of the employment contract, although the employer may, according to the needs of production and operation, exercise the right of appropriate unilateral position transfer of workers, but the transfer should be reasonable, that is, the transfer should take into account the needs of production and operation or the individual ability of workers, the wage level after the transfer being equal to that of the previous position, the transfer being not insulting and punitive, and the transfer not increasing the labor cost of workers.¡±
- 4Luo Haibo, Changsha Yicai Human Resources Consulting Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2017) Xiang 01 Min Zhong No.8280. The employee’s wage was reduced after medical care leave expired and he worked for nearly a year, and thus the court did not support the claim that the employer¡¯s wage reduction violated the law.
- 5Hunan Bus Public Transport Co., Ltd., Zhou Lixin Labor Dispute Retrial Review and Trial Supervision Civil Ruling Hunan Provincial People¡¯s High Court Civil Ruling (2019) Xiang Min Shen No.707. The employee was not competent for the work after the expiration of the medical care leave, and the employer terminate the employee on the ground of the employee¡¯s serious violation of company rules because the employee did not go to work during the negotiation process. The court held that the employer should communicate in good faith with humanistic care, and that the forced dismissal was illegal.
- 6Tong Jie, Liaoning Anji United Automobile Logistics Co., Ltd. Labor Dispute Retrial Review and Trial Supervision Civil Ruling Liaoning Provincial People¡¯s High Court Civil Ruling (2019) Liao Min Shen No.5984. After the expiration of the employee’s medical care leave, the employer issued seven work notices, but the employee ignored them and continued to be absent from work, and the court found that the employer¡¯s dismissal was legal.