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The company notified the employee to work outside the country without consultation, and then dismissed him on the grounds of absenteeism. After the first adjudication, second instance and retrial, the court made it clear that the place of work is a major matter in the labor contract, and if the employer's adjustment of the place of work has a substantial impact on the employee, the consent of the employee should be obtained.

Workplace relocation brings life challenges that many employees have experienced. Wang Shuqing (pseudonym), a girl from Hunan Province, also encountered this situation. Without consultation, the company notified Wang Shuqing to transfer to the field office. After she refused, the company fired her for absenteeism. The two parties had a dispute over whether the labor relationship was terminated illegally, and successively applied for arbitration and sued the court.

If the company changes the place of work, does the employee have the right to say "no"? The court held that the place of work is a major matter in the labor contract, and if the employer's adjustment to the place of work has a substantial impact on the employee, the consent of the employee should be obtained. After arbitration, first instance, second instance and retrial, the company was awarded 14,26 yuan in compensation to Wang Shuqing.

The company changes the place of work without consultation

Wang Shuqing joined a data company in Changsha on May 2009, 5. After being transferred by the company, he went to work in the branch in Beijing in April 22. On January 2014, 4, the company signed an open-term employment contract with her.

From July to August 2020, the company issued a notice requiring all employees of the acceptance department to temporarily work in Changsha, and the working period was from August 7, 8 to February 2020, 8, and Wang Shuqing and other employees should report to Changsha on August 5, 2021. Wang denied receiving the notice.

On August 2020, 8, the company issued a "Notice of Arrival at Work within a Time Limit" to Wang Shuqing, requiring him to report for work on August 13, 2020. Wang Shuqing confirmed receipt of the notice and replied to the company on the same day, saying that he did not recognize the content of the notice, and some company leaders explained that the transfer was to save costs and eliminate departments. The company said it received a reply letter from Wang Shuqing.

A few days later, the company issued a notice of dismissal to Wang Shuqing on the grounds of 14 days of absenteeism. Wang Shuqing believed that the company had illegally terminated the labor relationship and requested the arbitration to award the company to pay him economic compensation of 14,<> yuan and unpaid wages. The arbitration institution will not accept it.

Whether the company should be liable for compensation

Wang Shuqing filed a lawsuit in court. The company submitted WeChat chat records during the trial, saying that on July 2020, 7, the parent company of Changsha sent WeChat to Wang Mou, the person in charge of the Beijing branch, with the content of the "Notice of Phased Transfer of Work Place". Wang immediately forwarded the notice to the subordinate department and arranged for the employees of the acceptance department to sign and confirm. The 6 employees of the acceptance department, except Wang Shuqing, all signed and agreed.

The company said that when it sent Wang Shuqing the "notice of arrival within a time limit", it negotiated with her to shorten the time to transfer the place of work to two months, in order to take care of her. Ms. Wang said the two sides did negotiate, but the company fired her without reaching an agreement.

After investigation, the company shipped office equipment to Changsha from July 2020, and the Beijing branch canceled the attendance machine in Beijing on August 7, 2020, which included the list of employees of the acceptance department, including Wang Shuqing. Therefore, the court of first instance held that Wang Shuqing's inability to provide labor normally was caused by the company, and the company should pay the monthly salary according to Wang Shuqing's normal attendance.

The court held that Wang Shuqing had been working in Beijing for a long time since 2014, and the company's request to report to Changsha in July and August 2020 was a change to Wang Shuqing's work location, and the place of work, as a clause in the labor contract, should be changed through consensus between the employee and the employer. In this case, after the company sent Wang Shuqing a notice of arrival within a time limit, Wang Shuqing had replied that he did not agree to change the place of work, in this case, the company directly terminated the labor contract on the grounds that Wang Shuqing was absent from work, which did not comply with the law, and should pay him compensation for illegal termination of labor relationship.

In summary, the court of first instance ordered the company to pay Wang Shuqing 14,2020 yuan in compensation for illegally terminating the labor relationship and 8,3779 yuan in salary difference in August <>. The company appealed against the first-instance judgment, and the second-instance judgment upheld the original judgment.

Changes to duty stations are subject to legal procedures

After the first instance and second instance, the company was not satisfied and applied for a retrial, saying that in response to the impact of the new crown epidemic, it decided to use the off-season to renovate the office space of the Beijing branch as a whole, and temporarily transferred some employees back to work in Changsha, which was reasonable and urgent.

The company said that its temporary transfer of Wang Shuqing's work location was based on a contract. According to the Employment Contract Variation Agreement signed by the two parties on January 2018, 1, Wang Shuqing agreed to "change the job position according to the company's work needs", and the job position naturally includes the place of work.

In addition, the company asserted that the temporary transfer of duty stations was legal. Mo said that the temporary transfer of work stations is only two months, and even if it is six months, the term of the open-term employment contract is short compared to the two parties, so it will not have a substantial impact on the performance of the employment contract. Moreover, after the temporary transfer of the workplace, Wang Shuqing's job position and content were not adjusted, nor was his salary and welfare reduced, which is justified. Moreover, Wang Shuqing, his spouse and parents are all registered in Hunan, and they also bought a house in Changsha after marriage, and the temporary transfer of work places will not have a great adverse impact on their family life.

The company believes that although the Labor Contract Law stipulates that the employer and the employee can change the labor contract through consensus, it is also undeniable that the employer can exercise its autonomy in operation and management and make appropriate adjustments to the position of the employee when the production structure and business scope are adjusted or the external market changes, and the employee should cooperate in this regard. As an employee of the company, Wang Shuqing should obey the company's operating arrangements, but his refusal to work constitutes absenteeism, and his labor relationship should be terminated without compensation.

The court noted that the place of work of the employee is a material matter in the employment contract. During the performance of the labor contract, if the employer's adjustment of the work location has a substantial impact on the employee, the consent of the employee shall be obtained. If the employer believes that there is force majeure or that it is necessary to adjust the working place of the employee according to the needs of production and operation, it shall also be resolved in accordance with legal procedures. In this case, the company arranged for Wang Shuqing to work in a different place, even if it was only a temporary transfer of work location, as claimed by the company, which also had a substantial impact on him. In the absence of consensus between the two parties, there is no legal basis for the company to unilaterally terminate the labor contract. The court dismissed the company's appeal and upheld the original judgment.

Lai Zhikai (Source: Workers' Daily)

Lai Zhikai