Employer's Employment Autonomy VS. Employee's Right to Employment 

        Many workers have encountered the situation of changing units in the workplace. Both parties should agree when changing the labor contract, whether voluntarily or at the request of the company. However, if there is no consensus, how to balance the labor's employment autonomy and the labor's employment right? This issue of "legal column" will be explained in detail.

        Case description
         Zhou had an industrial injury on June 23, 2016. After treatment, he returned to work on September 22, 2016. Later, because Zhou thought that it was unsafe for the original team to complete the packing work alone and refused to obey the work arrangement, the original team applied to transfer him from the post on the grounds that Zhou did not obey the work arrangement, the company held a special meeting attended by the company's leaders, the head of the labor union, the production director, the team leader, and Zhou together, and made the notice on the transfer of Zhou from the original post. 》, and transfer it to the guard room of the company. However, due to Zhou's refusal to report to the new post for work, the company cancelled the labor contract with Zhou on the basis of absenteeism for many days.
        
         When Zhou applied for retrial, he made the following claims:
         1. Zhou went to the hospital for reexamination after returning to work. The doctor suggested that he continue to rest until October 26, 2016. During this period, the company made the notice on the transfer of Zhou from his original post, adjusted him to work in the guard room without authorization, and reduced the wage standard. According to the relevant laws and regulations, the change of the content of the labor contract shall be agreed by both parties, otherwise it shall be deemed that there is no change. If Zhou doesn't agree to go to the new post, the notice of changing his post will not have legal effect, so Zhou should still go back to his original post.
        
         2. On the premise that Zhou doesn't agree to go to work in a new post, the company cancels the labor contract of both parties on the grounds of absenteeism, which belongs to the illegal termination of the labor contract by the employer.
        
         3. There is no problem that Zhou is not competent for the original job in this case. Without his consent, the company will adjust the job without authorization, which is deemed as illegal termination of the labor contract, and shall pay Zhou economic compensation. To sum up, it is requested to cancel the judgment of the first and second instance of this case and file a retrial of this case according to law.

        Referee result
         Within the scope prescribed by law, the employer enjoys the right of operation autonomy, and can reasonably adjust the work positions of the workers according to the production and operation conditions of the unit and the actual situation of the workers. After the conflict between Zhou and the original team due to work arrangement, the company will change them to a new post. Although Zhou does not accept the decision, he should obey the arrangement first and report to the new post. However, he refuses to obey the arrangement and is absent for several consecutive days. Moreover, during the process, the company has repeatedly explained to him that if he does not arrive at the post, he is deemed to be absent from work and must bear the labor contract to be terminated. The same legal consequences. Therefore, it is not against the law for the company to terminate the labor contract with Zhou on the grounds of absenteeism. The court of first and second instance did not support Zhou's claim for payment of economic compensation, and it was not improper, so it rejected Zhou's retrial application.

        Case analysis
         In order to protect the legitimate rights and interests of workers and develop harmonious and stable labor relations, the labor law, the labor contract law and their relevant judicial interpretations have clearly defined the adjustment and change of labor relations of employers. The case is a dispute caused by the transfer of posts, involving the conflict and balance between the employer's employment autonomy and the employee's employment right.
        
         It is generally believed that the post is a necessary term of the labor contract, and the post transfer is a change of the content of the labor contract. According to the labor contract law, the employer and the employee can change the content of the labor contract by consensus, but the change of the labor contract should be in written form. It can be seen that the transfer requires the written consent of the employee himself. However, the "incompetent transfer" belongs to the right of the employer to use the work, without the written consent of the employee. Nevertheless, the employer cannot be willful. The adjustment should be reasonable.
        
         Another question is, if the workers do not agree with the transfer, but still report to the new post, can they claim that the transfer is invalid afterwards? According to the interpretation of the Supreme People's Court on Several Issues concerning the application of laws in the trial of labor dispute cases (4), the labor contract has not been changed in written form, but the oral labor contract has been actually performed for more than one month, and the content of the labor contract after the change does not violate laws, administrative regulations, national policies and good public order, and the parties do not use the written form. The court shall not support the claim that the change of labor contract is invalid. According to the provisions of this article, it can be seen that the actual performance of the oral change contract by the employer and the employee is more than one month before it can be determined that both parties have actually changed and performed the labor contract. In other words, as long as the employer performs for more than one month, if the employee claims that the change of the labor contract is invalid because of "not in writing", the actual performance rules can be used to defend.
        
         As for the post transfer behavior in the change of labor contract, workers should rationally express their opinions to the employer, and should not take absenteeism or other antagonistic behaviors. Therefore, legal Dept. suggests that even if the workers do not agree with the post transfer, they should go to the new post first and then safeguard their rights. Otherwise, they will be regarded as absenteeism, causing greater damage to their own rights and interests.