Question:
I was hired as an accountant under a signed employment contract, which clearly specifies the job title and position as an accountant in the accounting department. However, the company unilaterally reassigned me to the human resources department, requiring me to take on tasks entirely unrelated to my original expertise and job title, without any notice or consent from me. I would like to ask the lawyer: Is this reassignment in compliance with labor laws? Under the provisions of the Labor Code, what conditions must the company fulfill if it wants to reassign an employee to a position different from that in the employment contract? If I do not agree with this decision, do I have the right to file a complaint or request to return to my original position?
Answer:
SBLaw advises the client as follows:
Pursuant to Article 29 of the Labor Code 2019, employers are entitled to temporarily reassign employees to work different from the employment contract in the following cases:
- In cases of unexpected difficulties such as natural disasters, fires, dangerous epidemics, measures to prevent and remedy occupational accidents, occupational diseases, power or water supply incidents, or production and business demands, the employer is entitled to temporarily reassign employees to perform tasks different from their employment contract. However, the reassignment must not exceed 60 cumulative working days within a year; for reassignment exceeding this limit, the employer must obtain the employee's written consent.
- Employers must specify in the labor regulations the cases in which employees may be temporarily reassigned to work different from their employment contract due to production and business needs.
When temporarily reassigning employees to work different from their employment contract, the employer must comply with the following:
- Provide the employee with at least 3 working days’ prior notice, specifying the duration of the temporary assignment and assigning tasks suitable to the employee's health and gender.
- Pay the employee based on the new job. If the new job's salary is lower than the previous one, the employee shall retain their original salary for 30 working days, after which the salary for the new position must be at least 85% of the previous salary but not less than the minimum wage.
- If the employee does not agree to continue working in the reassigned position after exceeding 60 cumulative working days in a year, and they must suspend work, the employer is required to pay suspension wages in accordance with the law.
Accordingly, an employee has the right to refuse to temporarily perform work other than that agreed upon in the labor contract if the employer transfers the employee to a different job for more than 60 cumulative working days within one year.
Pursuant to Clause 2, Article 11 of Decree No. 12/2022/ND-CP regulating administrative penalties for violations related to the performance of labor contracts, specific provisions are as follows:
Violations regarding the performance of labor contracts:
...
2. A fine ranging from VND 3,000,000 to VND 7,000,000 shall be imposed on employers who commit one of the following acts:
a) Assigning an employee to work at a location other than the workplace agreed upon in the labor contract, except in cases provided for in Article 29 of the Labor Code;
b) Failing to reinstate an employee to work after the expiration of a temporary suspension of the labor contract if the labor contract is still valid, unless otherwise agreed by the employer and employee or unless otherwise provided by law;
c) Transferring an employee to perform work other than that agreed in the labor contract without proper justification, exceeding the allowable duration, or without obtaining the employee's written consent as prescribed by law.
Pursuant to Clause 5, Article 11 of Decree No. 12/2022/ND-CP on remedial measures for such violations, the regulations are as follows:
Violations regarding the performance of labor contracts:
...
5. Remedial measures:
a) Employers are required to assign employees to work at the location agreed upon in the labor contract if they commit the violation specified in Point a, Clause 2 of this Article;
b) Employers are required to reinstate employees to work after the expiration of the temporary suspension of the labor contract, unless otherwise agreed or required by law, and to pay wages for the days the employees were not reinstated, in cases of violations specified in Point b, Clause 2 of this Article;
c) Employers are required to assign employees to perform the work agreed upon in the labor contract if they commit the violation specified in Point c, Clause 2 of this Article.
Thus, if an employer improperly transfers an employee to perform work other than that agreed upon in the labor contract, they may face the following administrative penalties:
- Fines:
- From VND 3 million to 7 million for individual employers.
- From VND 6 million to 14 million for organizational employers.
- The employer is required to assign the employee to perform the work agreed upon in the labor contract.
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