Employers are prone to labor disputes when employees are transferred unilaterally. How to grasp the scale of unilateral transfer in practice? In the first batch of typical cases of labor and personnel disputes jointly issued by the Supreme People's Court and the Ministry of Human Resources and Social Security, Case 14, how the employer can legally adjust the workers' jobs and places by exercising the right of employment autonomy, is of reference value to the employer.

Basic case

Sun joined a mold company in August 2017, and the two parties entered into a labor contract without a fixed term, stipulating that Sun's work place is a municipality directly under the central government, and his post is "logistics auxiliary post", and his specific work content is "finance, budget management and other administrative work". The two parties also agreed: "The mold company can adjust Sun's post, work content and work place according to the needs of production and operation."

After joining the company, Sun was arranged to work in the development center of the mold company in a certain city to engage in financial and personnel auxiliary work.

On July 1, 2019, based on the company's production, operation and management needs, in order to reduce the workload of each center, the mold company transferred the financial work of each center back to the financial office of the company headquarters for unified management. To this end, Sun handled the handover of all financial documents of the development center, and the mold company communicated with Sun and proposed to arrange him to work in other positions in the development center, but Sun refused.

After that, the mold company arranged for Sun to work in personnel-related work at the company headquarters in the adjacent urban area.

At the end of July, Sun asked the mold company to transfer him back to his original job, and the two parties had a dispute.

Sun applied to the Labor and Personnel Dispute Arbitration Commission (hereinafter referred to as the Arbitration Commission) for arbitration.

Applicant's request: The mold company was required to continue to perform the labor contract according to the original work place and post.

Processing result: The Arbitration Commission ruled that Sun's arbitration request was rejected.

Case analysis

The focus of controversy in this case is whether the mold company's adjustment of Sun's post and workplace is a legitimate exercise of employment autonomy.

Article 8 of the Employment Promotion Law of People's Republic of China stipulates: "Employers have the right to choose their own employees according to law." As the main body of the market, it is an important content for employers to exercise their employment autonomy and indispensable for their normal production and operation to make appropriate adjustments to their jobs and workplaces according to their own production and operation needs. At the same time, however, the exercise of the employer's employment autonomy must also meet certain conditions and scope within the framework of relevant laws and policies. For example, the employer must make a reasonable explanation for the adjustment of the post or workplace to prevent the employer from taking revenge or forcing the employee to leave the job voluntarily in disguise, that is, to prevent the abuse of his rights.

In practice, the rationality of post or workplace adjustment generally considers the following factors:

1, whether it is based on the needs of the employer's production and operation;

2, whether it is a major change to the labor contract;

3, whether it is discriminatory and insulting to workers;

4, whether it has a greater impact on labor remuneration and other working conditions;

5. Whether the laborer is competent for the adjusted position;

6. Whether the employer provides necessary assistance or compensation measures after the inconvenient adjustment of the workplace.

In this case, both parties agreed in the labor contract that Sun's post was a "logistics auxiliary post", which was not a fixed or professional post. According to the needs of production and operation, the mold company appropriately adjusted Sun's post, work content and work place for the needs of unified financial management, and it was not targeted at Sun.

At the same time, the mold company also communicated and negotiated with Sun for the adjustment of the work place and work content, and gave a variety of options, including appropriate adjustment of posts in the original work place, which reflected the respect for Sun's labor rights and interests. And the adjusted personnel position was similar to Sun's original position, and Sun was fully competent. Finally, Sun's adjusted work place was also in an urban area with convenient transportation. Although the commuting time has increased, the change of the place was not enough to determine that it had a great adverse impact on him and did not constitute an infringement on his labor rights and interests. Therefore, Sun's arbitration request was rejected according to law.

Typical significance

Under the condition of market economy, it is normal for employers to adjust and change due to the needs of production and operation. The law allows the employer to reasonably adjust the workers' jobs and workplaces according to their own production and operation needs, which is not only conducive to maintaining the development of the employer, but also conducive to the stability of labor relations.

It should be noted that if supporting the employer to make unreasonable adjustments to the post or workplace will inevitably infringe upon the legitimate rights and interests of the workers, the workers can request to continue to perform the labor contract or compensate the wage difference according to law. Article 35 of the Labor Contract Law of People's Republic of China stipulates: "An employer and an employee may modify the contents stipulated in the labor contract if they so agree upon negotiations. The modifications to the labor contract shall be made in writing."

For the employing unit, when adjusting production, operation or management, it should first choose to fully negotiate with the workers and try to complete the adjustment by changing or supplementing the labor contract. If no consensus can be reached, the protection of workers' rights and interests should also be fully considered when adjusting their jobs or locations based on employment autonomy.

        As workers, we should also understand the development of employers, fully understand the impact on our rights and interests when adjustments occur, and actively negotiate with employers to jointly seek harmony in adjustment and change.