TRANSFER OF EMPLOYEES IN LABOR CODE 2025
Topic 10:
TRANSFER OF EMPLOYEES IN LABOR CODE
Senior Lecturer, MSc. Đoàn Công Yên
SUMMARY OF THE CASE AND COURT’S DECISION
[Judgment No. 05/2022/LĐ-PT dated September 20, 2022, of the People’s Court of Long An Province regarding disputes on unilateral termination of labor contracts and wage claims.]
Summary of the Case:
On January 2, 2019, Mr. Đào A. Khánh and T University (abbreviated as T University) signed Labor Contract No. 462/HĐLĐ-TTU.19 with a term of three years, under which Mr. Khánh was recruited to work for T University in the position of Lecturer in the Faculty of Medicine, Department of Physiology.
On September 20, 2021, T University attached Decision No. 67/QĐ.TTU.21 dated September 20, 2021, to an email sent to all lecturers and staff of T University. This email notified Mr. Khánh’s transfer from his position as lecturer in the Faculty of Medicine to the title of personnel awaiting reassignment within the Administration and Organization Office, effective September 21, 2021. Believing that this transfer was unlawful, Mr. Khánh initiated legal proceedings to request the annulment of Decisions No. 61/QĐ.TTU.21 dated September 20, 2021, No. 67/QĐ.TTU.21 dated September 20, 2021, and No. 68/QĐ.TTU.21 dated September 20, 2021, concerning his reassignment.
Court’s Decision:
The appellate trial panel did not accept Mr. Khánh’s request to initiate proceedings.
COMMENTARY
I. Introduction
In employment relationships, transferring employees is a crucial mechanism that enables employers to fully exercise their management and operational rights, thereby increasing efficiency in hiring and utilizing labor. To regulate this authority of employers and safeguard the rights and interests of employees, the State has established numerous conditions that employers must adhere to. Furthermore, the State has defined minimum rights for employees under Article 31 of the 2012 Labor Code and Article 29 of the 2019 Labor Code.
Through the judgment mentioned above, we analyze two fundamental legal issues related to these articles:
(i) Conditions that must be satisfied when transferring employees to different jobs; and
(ii) Legal consequences of transferring employees to different jobs in violation of the law.
II. Legal Issues
- Conditions That Must Be Satisfied When Transferring Employees to Other Jobs
Transferring employees to other jobs is a management measure exercised by employers that may impact employees’ morale and income. Therefore, under Article 29 of the 2019 Labor Code, employers must ensure the following conditions when transferring employees to other jobs:
First, employers must have legitimate reasons.
Employers are allowed to transfer employees “when encountering unexpected difficulties caused by natural disasters, fires, dangerous epidemics, the implementation of measures to prevent and remediate occupational accidents, occupational diseases, or incidents involving electricity and water, or due to production and business needs.” These reasons are explicitly detailed under Article 29 of the 2019 Labor Code:
“When encountering unexpected difficulties caused by natural disasters, fires, dangerous epidemics, the implementation of measures to prevent and remediate occupational accidents, occupational diseases, or incidents involving electricity and water, or due to production and business needs, the employer has the right to temporarily assign the employee to a job different from the labor contract.”
The term “due to production and business needs” is highly general and flexible. Without oversight from other entities, employers may arbitrarily cite numerous reasons categorized under “production and business needs.” To protect employees, the State requires that “employers must specifically define, within the internal labor regulations (ILRs), the circumstances under which production and business needs permit the temporary reassignment of employees to different jobs from those outlined in their labor contracts” [Clause 1, Article 29 of the 2019 Labor Code; Point e, Clause 1, Article 69 of Decree No. 145/2020/ND-CP].
In the case involving T University and Mr. Khánh, according to the plaintiff’s representative, T University cited reasons such as “consideration of work requirements” and the competencies of staff members. However, these reasons were not recorded in T University’s ILRs. Nevertheless, the Court determined that:
(i) It cannot be assumed that if the defendant has not issued ILRs, they lack the authority to reassign staff based on business needs;
(ii) The reassignment was consistent with Point 4.2.5, Clause 4.2, Article 4 of the labor contract between the parties.
Specifically, Point 4.2.5, Clause 4.2, Article 4 of the labor contract states:
“The School has the right to reassign staff concurrently to other fields and/or locations other than those stipulated in Article 1, depending on the School’s developmental needs and necessities.”
As such, the Court concluded that T University’s reassignment of Mr. Khánh complied with Articles 5, 6, and 29 of the 2019 Labor Code.
This suggests that the trial panel did not require the defendant to demonstrate the existence of specific ILR provisions addressing circumstances related to production and business needs. The Court’s resolution of the case contradicts the requirements of Clause 1, Article 29 of the 2019 Labor Code and Clause 1, Article 69 of Decree No. 145/2020/ND-CP.
Second, employers must notify employees in advance.
According to Clause 2, Article 29 of the 2019 Labor Code: “The employer must notify the employee at least three working days in advance, specifying the temporary duration.” This provision serves to inform the employee beforehand about the situation and the duration of their reassignment, ensuring their right to file complaints.
In the case, prior to reassigning the plaintiff to a new position, the defendant issued Decisions No. 61 and 68, which Mr. Khánh received on September 23, 2021. These decisions stated that Mr. Khánh was to commence his new role on September 25, 2021. Although the Court observed that “Based on Decisions No. 61 and 68, the notification to Mr. Khánh did not satisfy the three-working-day requirement,” the Court also concluded that “Regarding the initiative and intent, Mr. Khánh was aware of T University’s decision to reassign him to the HR department as of September 20, 2021, thus fulfilling the three-working-day requirement.”
This illustrates that the Court’s resolution prioritizes the intent and awareness of the parties involved rather than strict adherence to procedures and formalities when transferring employees to other jobs.
Third, employers must clearly specify the temporary duration, and the total reassignment period must not exceed 60 working days within one year, unless there is written consent from the employee.
Regarding the reassignment duration, due to the temporary nature aimed at addressing very short-term matters, employers may not reassign employees for more than 60 working days within one year. The number of days is counted as working days, excluding rest days such as weekends and public holidays.
Concerning the term “one year,” there are two interpretations in practice. The first interpretation defines “one year” as the period from January 1 to December 31. While this interpretation is not explicitly stated in any legal provision, it is widely applied. The second interpretation defines “one year” as a continuous period of 365 days. This interpretation is currently used to calculate the number of days an employee is absent without notice under Article 125 of the 2019 Labor Code.
In the dispute between Mr. Khánh and T University, T University issued Decisions No. 61 and 68, requiring Mr. Khánh to commence his new role on September 25, 2021, without specifying the temporary duration of the reassignment. This constitutes a fundamental error by the employer, but it was not addressed by the Court during the case resolution.
Fourth, the nature of the work must be appropriate.
According to Clause 2, Article 29 of the 2019 Labor Code, employers must “assign work appropriate to the health and gender of the employee.” However, there are no specific legal documents providing guidance on what constitutes “appropriate to health and gender.” This legal ambiguity necessitates that entities resolving labor disputes thoroughly evaluate the arguments and evidence presented by the parties involved.
In the case at hand, in the handover record dated September 20, 2021, T University required Mr. Khánh to perform translation work, despite his role as a lecturer in the Faculty of Medicine. Considering only the factors of “health” and “gender,” the new assignment might appear appropriate for Mr. Khánh.
However, when examining additional factors such as the goodwill of the parties, it is evident that T University exhibited signs of bad faith and coercion against Mr. Khánh. Despite having a Department of English Language with sufficient expertise in translation, T University nevertheless reassigned Mr. Khánh, a lecturer in the Faculty of Medicine, to perform translation tasks. This detail, regrettably, was overlooked by the Court and not addressed in its judgment.
In another case involving Ms. Võ Ngọc and Orient Commercial Joint Stock Bank [Judgment No. 1955/2016/LĐ-ST dated November 14, 2016, of the People’s Court of District 1, Ho Chi Minh City, regarding disputes on labor contracts and labor disciplinary actions], the plaintiff and the defendant had signed various labor contracts for different positions over time, as follows:
Labor Contract No. 102; Labor Contract No. 155 for the position of Team Leader of Business – Head of the Direct Sales Center for Individual Customers at the Headquarters; subsequently, a labor contract appendix for the position of Acting Director of Tân Phú Transaction Office under Tân Bình Branch. On April 22, 2014, the plaintiff was appointed to the position of Head of the Savings Fund at Châu Văn Liêm under Phú Lâm Branch. Decision No. 241 reassigned Ms. Ngọc from the position of Head of the Savings Fund at Châu Văn Liêm to the position of Team Leader of Business.
The trial panel determined that the reassigned job was similar to the jobs under previously signed contracts No. 102 and 155, and therefore suitable for the health and gender of the plaintiff. The author fully agrees with the trial panel’s approach and perspective. The work history of the employee is essential information that contributes to assessing whether the new job aligns with the health and gender of the employee.
Fifth, ensuring the payment of wages to employees in accordance with regulations.
When reassigned, employees must be protected regarding their wages: “Employees reassigned to a job different from the labor contract shall be paid wages according to the new job. If the wages for the new job are lower than those of the old job, the employee shall retain the wages of the old job for a period of 30 working days. The wages for the new job must be at least 85% of the wages for the old job but not lower than the minimum wage.” (Clause 3, Article 29 of the 2019 Labor Code).
The wage protection for employees reassigned to other jobs under Article 29 of the 2019 Labor Code is fundamentally similar to Article 31 of the 2012 Labor Code. The distinction lies in the new provision: “The wages for the new job must be at least 85% of the wages for the old job but not lower than the minimum wage.” The “minimum wage” may refer to the regional minimum wage or the industry-specific minimum wage, among others.
In the case, the parties did not dispute wages related to the reassignment. In practice, many employers still ensure wages and other benefits for employees when reassigning them to different jobs. This aligns with the provisions and general principles of Vietnamese labor law.
- Legal Consequences of Unlawfully Transferring Employees to Other Jobs
Regarding Labor Disciplinary Liability:
If the decision to transfer the employee to another job is unlawful and the employee does not comply with that decision, can they be subject to disciplinary action? Labor law does not provide clear guidance on this matter. In the case, the Court asserted, “If the three-working-day notice period (as per Decisions No. 61 and 68) is not met, the employee has the right to file a complaint with the University to ensure sufficient notice or Mr. Khánh has the right to take on the new job after the completion of the three-working-day period starting from September 23, 2021. If the University disciplines him in this circumstance, the University would be in violation of the law.”
Regarding Administrative Liability:
According to Clause 1, Article 11 of Decree No. 12/2022/ND-CP:
– A fine ranging from 1,000,000 VND to 3,000,000 VND shall be imposed on employers who temporarily transfer employees to a job different from the labor contract without providing at least three working days’ notice, or without giving notice, or providing notice within the temporary work period, or assigning work inappropriate to the employee’s health and gender.
– A fine ranging from 3,000,000 VND to 7,000,000 VND shall be imposed on employers committing one of the following acts: […] transferring employees to other jobs inconsistent with valid reasons, duration, or without written consent from the employee as prescribed by law.
III. Conclusion
To lawfully transfer employees to other jobs, employers must fully comply with the conditions and procedures when issuing transfer decisions. Violations of any of these conditions may result in the decision being deemed unlawful, requiring compensation for material and emotional damages to the employee. The 2019 Labor Code introduced several changes, including a provision stipulating that: “If an employee does not consent to temporarily perform a job different from the labor contract exceeding 60 working days within one year, they may suspend work, and the employer must pay suspension wages in accordance with Article 99 of this Code.”
For the legal framework on employee transfers to be more complete, the State should consider clearly defining how to calculate the term “one year” under Article 29 of the 2019 Labor Code.
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