The Shanghai First Intermediate People’s Court ruled that an employer wrongfully terminated an employee for refusing a job reassignment. The court ruled that the employer could not unilaterally adjust the employee’s position and shift working hours and thus had illegally dismissed the employee for refusing the reassignment.
The employee originally worked in the administrative department during first shift. On September 9, 2014, the employer reassigned the employee to another department to cover for an employee on maternity leave. In the new position, the employee was required to be available for flexible shift work. The employee submitted a written objection to the reassignment. The employer offered to limit the employee’s work in the new department to the first shift, but the employee still refused the reassignment. Eventually, the employer deemed the employee insubordinate for refusing a reasonable job reassignment and terminated the employee’s labor contract.
The labor arbitration committee decided that the dismissal was justified, but the courts disagreed. Both the trial court and the appellate court found that the employer adjusted the position and the shift working hours without consulting with the employee. Therefore, the employee had a right to refuse the reassignment and the employer had no grounds on which to terminate the employee’s labor contract.
Key Take-Away Points:
An employer should generally consult with an employee before materially adjusting the employee’s position or shift working hours through a reassignment even if the reassignment does not impact the employee’s salary. Although the Shanghai High People’s Court has issued past guidance indicating that unilateral adjustments within reason and for valid business reasons maybe supported by the courts, judges have much discretion in determining what is reasonable. If a change is made without obtaining employee agreement, particularly if it is somewhat significant, the adjustment may be deemed unlawful and the employee will have the right to refuse the reassignment.