Transfer the employee to other jobs than the contract
Question: DTD & Associates LLP let me ask: The company X and I have signed an indefinite-term labor contract from February 16, 2017, the contract clearly states that my working position is an accountant for company X headquartered in Hanoi. However, on July 13, 2020, I received a decision with the content as follows: On July 15, 2020, I had to come to Nha Trang to work with another position within 5 month. In my opinion, the company X has infringed on my legitimate rights and interests.Therefore, please let me know whether the company X violates my legal rights in accordance with the current law and what I should do in this case . Thank you!
Answer: Hello. Thank you for your trust and sending your question to the legal consulting department of DTD & Associates LLP. The content of your question has been researched and advised by our team of lawyers as follows:
+ Labor code No. 10/2012/QH13 issued by the National Assembly dated June 18, 2012
+Decree No.05/2015/NĐ-CP issued by the Government dated January 12, 2015defining and providing guidance on the implementation of a number of contents of the Labor code
According to the information you provided, the employment contract between you and the company X states that your working position is an accountant for company X headquartered in Hanoi. However, on May 13, 2020, you received a decision to change your job in 5 months with a different position not specified in the contract. The assignment of employees to perform jobs which are not stated in labor contracts is specified as follows:
Firstly: Basis for assignment of employees to perform jobs which are not stated in labor contracts
Pursuant to clause 1, Article 31 of the Labor code 2012:
“1. When meeting with sudden difficulties such as natural disaster, fire or epidemic, or taking measures to prevent and deal with a working accident, an occupational disease or an electricity or water supply incident, or when due to business and production needs, the employer may temporarily assign an employee to perform a job which is not stated in the labor contract provided that the assignment does not exceed 60 accumulated workdays within one year, unless otherwise agreed by the employee.”
According this regulation, the employer shall be entitled to temporarily transfer the employee to perform a job which is not stated in the employment contract in the following cases:
+ Natural disaster, conflagration, epidemic;
+ Application of preventive and remedial measures against occupational accidents and diseases;
+ Electricity and water supply incident;
+ Operating demands.
Besides, the employer is allowed to temporarily transfer the employee to work in other positions which are not included in the labor contract in case the employer specifies in the internal rules of the enterprise. According to Article 8 of Decree 05/2015/ND-CP:
“2. The employer shall specify in the corporate rules that the employer may temporarily transfer the employee to jobs which are not stated in the employment contract due to production and business demands.”
So in your case, if the company X temporarily transfers you to another job due to business needs, it must be specified in the corporate regulations.
Secondly: About the time to transfer the employee to other jobs which are stated in the labor contract.
Clause 3 Article 8 of Decree No. 05/2015/ND-CP stipulates:
“3. In case the employer has temporarily transferred the employee to perform jobs other than those in the employment contract for full 60 cumulative working days in a year, if the employer continues to temporarily transfer the employee to perform jobs other than those defined in the employment contract, the written consent shall be obtained from the employee.”
On this basis, it can be seen that it is against the law for the company X to transfer you to work at a position not defined in the signed contract, within 5 months without your written consent. Thirdly: About the notification deadline
According to the Clause 2 Article 31 of the Labor Code 2012:
“2. When an employer temporarily assigns an employee to perform a job which is not stated in the labor contract, the employer shall inform the employee at least 3 working days in advance, clearly stating the duration of temporary work and the assigned work which must be suitable to the health and gender of the employee.”
According to the information you provided, company X informed you about the transfer of you to perform jobs other than those in the labor contract only within 02 days in advance (From July 13, 2020 to July 15, 2020 ). Therefore, Company X has violated the time limit for notification to employees.
In this case, you can make a complaint to the company X or through a trade union to protect your legitimate rights and interests according to the provisions of Clause 1, Article 188 of the Labor code 2012:
“1. Grassroots level trade unions play the role of representing and protecting the rights and legitimate interests of trade union members and employees; participate in negotiating, signing and supervising the implementation of collective labor agreements, wage scales and wage tables, labor norms, wage payment regulations and bonus regulations, internal working regulations, democracy regulations in enterprises, agencies or organizations; participate in and assist the settlement of labor disputes; hold dialogues and cooperate with employers to build harmonious, stable and progressive industrial relations in enterprises, agencies or organizations.”
In case you have filed a complaint with the company or through a trade union but cannot be resolved, you can file a request for personal labor dispute mediation through the labor mediator as defined in Clause 1, Article 201 of the Labor Code 2012:
“Article 201. Order and procedures for settlement of individual labor disputes by labor conciliators
Pursuant to Clause 1, Article 198 of the 2012 Labor Code, individual labor disputes will be resolved according to the assignment of the competent county labor authority to resolve.
“Article 198. Labor conciliators
1. Labor conciliators are appointed by the state management agency of labor of a district, town or provincial city to conciliate labor disputes and disputes over vocational training contracts.”
If the mediation is unsuccessful, you can take court action in civil proceedings.
