Being ordered to transfer In this case, it means changing the work location, such as working at a branch office in Bangkok and suddenly being ordered to transfer to work at another branch in a different area or province. Can the company do this? And is it legal?
Before we think too far that being transferred or demoted means that our boss or company wants to pressure us, we must first understand that:
“Can the company transfer jobs or change the roles and positions of employees?”
Job transfer means that the company orders employees to change positions, duties, work or change workplace. The company or employer has the right to order employees to transfer jobs. Normally, the order comes from the executive, human resource manager or supervisor. The matter of transfer is considered the discretion of the company or employer. They can determine or order transfers at any time or for any reason.
“Being ordered to transfer, even though it is the employer’s authority, we must also be fair to the employees because many times we find that employees are ordered to transfer unfairly.”
In the case of demotion or transfer of job position
Companies or employers can order employees or workers in all cases, whether it is transferring work or changing positions or changing duties. However, such actions must be legal and fair to employees or workers.
Case Study 1 : Reference: Supreme Court Decision No. 868/2005
The transfer of an employee from the position of Secretary Level 4 to a general employee in the Vegetable and Fruit Department, where the department head is a Level 3 employee, is a transfer that reduces the employee’s position. Even though the employer paid the same wage, it is considered an illegal transfer order and is unfair to the employee. The employee’s refusal to work in the new position is not considered a violation of the employer’s lawful and fair order. Therefore, the employer cannot punish the employee.
In this case, the employee is at level 4 but has to move to work at level 3, which is lower than before. This is considered unlawful. Although the matter of changing duties is not specified in the law, there are criteria that the Supreme Court has set as follows:
Regarding the nature of the work, if an employee or staff member has previously worked in a job that required knowledge and skills, including specialized experience or a special nature of work, but it appears that the new position or new responsibilities received become work that does not use the employee or staff member’s knowledge or skills at all, or uses skills and skills that are much lower than before, if this is the case, it falls under the category of a job transfer to a lower level than before.
In the case of relocation of work place
In the case of being ordered to transfer, it may be either just or unfair. For example:
Case Study 2 : Reference: Supreme Court Decision No. 166-167/2003
The employer’s order to transfer low-income employees to work at a factory and distribution center in Phetchaburi Province, 120 kilometers from their original workplace, without providing accommodation or transportation to work, and without the employees being able to claim for house rent, increases the employee’s expenses and causes great hardship. It is difficult for employees who already have low incomes to comply with the employer’s order, so it is considered harassment of the employee. Although the employer’s order is legal, it is unfair to the employee.
In this case, the employee’s expenses have increased significantly, which is considered unlawful. Although the matter of job transfer is not specified in the law, there are criteria that the Supreme Court has set as guidelines, as follows:
The new salary and position must not be lower than the old one, and the company or employer must also demonstrate fairness to the employee or worker, which will be considered based on the necessity and honesty of the company or employer who has to move the employee or worker this time.
Case Study 3 : Reference: Supreme Court Decision No. 4105-4108/2007
The employer ordered the transfer of the four employees who worked at the Chiang Mai provincial office to work at the employer’s offices in other provinces, which the employer had the right to do according to the work regulations. Although the transfer would affect the daily life of the transferred employees’ families, it was considered normal. However, the new position was not lower than the original position. There was no evidence that the employer intentionally transferred the four employees. Therefore, the transfer order was in accordance with the work regulations and the law. The four employees did not go to work at the offices as ordered. Although they continued to work according to their original duties in Chiang Mai, it was considered an abandonment of their duties in the new positions without reasonable cause.
In this case, it is considered legal because the employer acted with reasonable cause and did not harass the employee.
In the case of moving the workplace to a new branch because the original branch is closed or out of business.
Due to the impact of COVID, many businesses have closed many branches and transferred many employees. Some employees see the transfers as unfair because they are transferred to work in a very distant branch. This action makes it seem like they are forcing employees to leave.
Refer to the new Labor Protection Act 2019 in the case where the employer moves the place of business to another place that affects the livelihood of the employee and the family of the employee of the branch that was moved to, where that branch is very far away, resulting in much higher travel expenses, or is unable to move to a different province because of family responsibilities.
Employees have the right to refuse to transfer and terminate the contract, receiving severance pay under Section 118.
Criteria for paying compensation Related laws Section 118 requires employers to pay compensation to employees who are terminated as follows:
- Employees who have worked for 120 days but less than 1 year are paid no less than 30 days’ wages.
- Employees who have worked for at least 1 year but less than 3 years are paid no less than 90 days’ wages.
- Employees who have worked for at least 3 years but less than 6 years are paid no less than 180 days’ wages.
- Employees who have worked for at least 6 years but less than 10 years are paid no less than 240 days’ wages.
- Employees who have worked for 10 years or more but less than 20 years are paid no less than 300 days’ wages.
- Employees who have worked for 20 years or more are paid no less than 400 days’ wages.
If the employer does not pay compensation or advance notice, it falls under the category of “unfair dismissal”. The new law requires the company to post an announcement of the branch closure, publicly informing the employees at least 30 days in advance. If the company does not post an announcement, the company must pay compensation in lieu of not giving notice for 1 month to the employees.
Conclusion
At this point, you should know that being transferred or demoted means that the company wants to force you to resign, right?
If anyone is treated unfairly by their employer, they can contact the Labor Hotline 1546 for advice or have a labor officer help mediate first. However, if the employer still does not do the right thing, the labor officer will forward the case to the Labor Welfare Committee for consideration in the next step.
The matter of labor law is important. If we do not want to be taken advantage of or do wrong without knowing or understanding, we must study the terms and conditions carefully. Otherwise, we may become the ones who lose benefits and may break the law.
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In what cases will employees not receive severance pay due to termination?
