Judge Summary
Employer labor tools have certain employment autonomy, but the exercise of employment autonomy must be within the framework of relevant laws and policies. The employer adjusts the worker's position or work location, and should meet certain conditions and scope to prevent the abuse of rights.
case brief introduction
On October 26, 2007, Qian joined a company. His job position was a physical measurement engineer, physical measurement supervisor, and the head of the quality department, and his work location was Hefei. Labor Contract Article 3 stipulates that "Party B agrees that Party A will make appropriate adjustments to the work location, job position, and salary standards based on the business conditions and work needs of the enterprise and the work ability of Party B." .
On July 9, 2020, the company's general manager notified Qian to work in a Shanghai affiliated company . Qian did not agree, and his quality department head was replaced by others.
On August 1, 2020, the company moved Qian Mou out of the middle and high-level WeChat management group .
On September 1, 2020, the company moved all Qian's WeChat work group out of .
On September 28, 2020, the company issued a notice of company adjustment of jobs, adjusted Qian's position to sample clothing quality .
On November 3, 2020, the company closed Qian's work account .
On November 18, 2020, the company issued a notice of onboarding, notifying Qian to report to Anhui Quality Management Department. The position of is the after-sales supervisor . Qian did not agree.
On November 26 and 27, 2020, the company installed monitoring in Qian's office . After
, Qian proposed to terminate the labor contract on the grounds that the company did not provide labor conditions and asked the company to pay economic compensation.
The first instance court held that
"7 of the Labor Law of the People's Republic of China " stipulates that employers independently determine the wage distribution method and wage level of the unit in accordance with the law based on the production and operation characteristics and economic benefits of the unit.
According to the above legal provisions, employers have the right to transfer jobs and salary based on the actual operating conditions of the enterprise, but their transfer must be based on necessity, rationality and legitimacy. Necessity, that is, the transfer of jobs is indeed due to production and operation needs. Reasonableness, that is, the job span is not large, and wages and benefits are basically unchanged. Legitimacy, that is, the purpose of transferring jobs is legitimate.
job transfer is the content of changing the labor contract. Article 17 of the Labor Law of the People's Republic of China stipulates that the conclusion and change of labor contracts shall follow the principles of equality, voluntariness and consensus, and shall not violate the provisions of laws and administrative regulations.
The labor contract is legally binding immediately in accordance with the law, and the parties must fulfill the obligations stipulated in the labor contract. Article 35 of the " Labor Contract Law of the People's Republic of China" stipulates that employers and workers may change the contents of the labor contract agreement through consensus. Changes to labor contracts shall be in written form.
According to the above legal provisions, the employer must comply with the legal provisions to change the labor contract during the contract period.
According to the spirit of the "Reply to Employees on Labor Disputes and Other Related Issues due to Job Changes and Changes in Employees", the employer may change the worker's job position according to the following conditions:
First, both parties change the labor contract under the premise of consensus. If the objective situation based on the labor contract is concluded at the time of , there are major changes, and there are serious difficulties in the production and operation of the enterprise, and the worker's job has to be adjusted. After the two parties agree, the labor contract will be changed.
Second, after the enterprise has been trained, the workers are not competent for the work, and the enterprises have the right to make decisions on job adjustments and transfer jobs to workers.
In this case, when the company transfers Qian, it should explain to Qian the necessity, rationality and legitimacy of the transfer, and provide the factual basis that can change Qian's job position in accordance with the law.However, when his did not fully explain to Qian and provide the corresponding factual basis, he moved Qian out of the company's management group, closed Qian's work account, and installed monitoring in Qian's office, causing Qian to be unable to work. Qian has the right to request the termination of labor relations with the company and require the company to pay economic compensation.
The second instance court held that
The employer has a certain degree of employment autonomy, but the exercise of employment autonomy must be within the framework of relevant laws and policies. The employer adjusts the worker's position or work location, which should meet certain conditions and scope to prevent abuse of rights.
In this case, the labor contract signed by the company and Qian stipulated that Qian should serve as the head of the Quality Section, and his work location is Shuangfeng Development Zone, Changfeng County, Hefei. The specific work tasks shall be subject to the position requirements of the company. Party B agrees that Party A will make appropriate adjustments to the work location, job position, and salary standards based on the business conditions and work needs of the company, and based on Party B's work attitude and ability.
From this we can see that company adjusts work locations and job positions according to business operating conditions and work needs, and meets the appropriateness requirements .
Qian has worked in Hefei for many years. The company adjusted Qian's job and location to Shanghai, which has exceeded the scope of the same city. His family life, social life and other aspects will inevitably be significantly affected by the adjustment of the work location. has a substantial impact on Qian's performance of the labor contract . Therefore, the company's adjustment of the work location is a change in the content of the labor contract.
According to Article 35 of the Labor Contract Law of the People's Republic of China, the employer and the employee may change the contents agreed in the labor contract. Changes to labor contracts shall be in written form.
Even if Qian has the fact that the company claims that he is not competent for quality department work, the company should perform the transfer procedures in accordance with the provisions of Labor Contract Law . However, the company failed to provide sufficient evidence to prove the necessity and rationality of his adjustment of the workplace, and the process of full negotiation with the worker, that is, unilaterally notify Qian to adjust the workplace, and based on the insufficient basis, Qian has the right to refuse.
The company then closed Qian's work account and removed WeChat work group, causing Qian to fail to provide labor normally, which is a failure to provide labor conditions to workers. Qian proposed to terminate the labor relationship with the company and requested to pay economic compensation, which complies with the law and should be supported.
Case No.: (2021) Anhui 01 Minzhong No. 7403
