A certain worker is in charge of sales for a company. His performance, ability, and work attitude have been poor for a long time. However, another team within the company requested more personnel, so the company assigned this worker to the team, but he rejected the transfer. Can the company transfer him without his consent? What does the company need to consider in terms of labor law?
In principle, the right to transfer workers belongs to an employer who is a personnel manager, within the scope of business needs, so the employer has considerable discretion. However, in Article 23 (1) of the Labor Standards Act, the employer is prohibited from transferring workers without justifiable reason.
First of all, it is necessary to check whether there is a provision in the relevant workers’ labor contract to determine whether his/her job is fixed or whether the job can change in light of management needs. If the details of the work are listed within a limited scope and not in a comprehensive manner on the labor contract or the employment rules, the employer must obtain the worker’s consent before transferring that worker to another job. This is also the case if the new job requires special skills, abilities, qualifications, proficiencies, experience, etc.—then the worker’s consent must be obtained for the transfer even if the job details are not specified in the labor contract.
Therefore, if the labor contract does not limit the worker to specific jobs in sales, and that the sales work does not seem to require special qualifications or skills, then the consent of the employee is not essential for the transfer. However, as to whether there is a justifiable reason for the transfer, a comprehensive decision is needed, with several things considered: management needs for the transfer; disadvantages to the worker caused by the transfer; whether the employer has followed procedures—such as consulting with the worker—required by the principle of good faith in the process of transferring. In other words, if the personnel appointment is not necessary for the job, if it is not recognized as a necessity in the job, if the transfer is made with ulterior motives, if the worker is significantly disadvantaged, or if there is a lack of reasonableness in the selection of the worker to be transferred, then transferring that worker will be an abuse of employer rights as it would deviate from the scope of legitimate personnel management.
It is difficult to give a more specific answer since the exact situation is unknown. However, in the interest of minimizing the disadvantage to the employee, sufficient consultation with the employee is needed before the dismissal and assistance given to that employee as he or she adapts to the new job, perhaps by increasing the existing wage and/or job title with the transfer. It is also a good idea to review the employee in question for objective management needs.