Employees might be curious as to whether a transfer order can be rejected since in most events, it is likely to cause inconvenience to the employees.
The answer to the above question is no, an employee cannot refuse a transfer order. There is a strong right on the part of the employer to transfer their employees to a different branch at a different State. The usual procedure of giving reasonable notice of transfer is not mandatory. Also, if such order is given, the employee has no option but only to accept the transfer order.
Note: with regards to the meaning of ‘transfer’ it should be noted that when an employer shifts his place of business or undertaking from one place to another, resulting in shifting of the employees is not a transfer.
Yet, the employer’s power to transfer cannot be exercised arbitrarily as it is subjected to the following well-recognised restrictions:
(i) there must not be anything contrary to the terms of employment. The employer has no right to transfer if this was expressly prohibited in the letter of appointment.
(ii) the management in making the transfer order, must have acted bona fide and in the interests of its business. In other words, the transfer must not operate to the prejudice or detriment of an employee unless expressly authorized.
(iii) the management is not actuated by any indirect motive or any kind of mala fides (in fact or in law). Malice in law is attracted when an order is not based on any factor germane for passing the order of transfer and is based on irrelevant grounds, such as order by way of punishment.
(iv) the transfer must not be made for the purposes of harassing and victimizing the employee. This means that transfer to an inferior position and imposition of unaccustomed and onerous duty must not be allowed particularly in unexplained coincidences.
(v) the transfer must not involve a change in condition of service. Therefore, no employer has the inherent right to transfer his employee to another place where the employer chooses to start a business immediately subsequent to the date of employment of the employee. This is due to the reason that there is no presumption that this was impliedly agreed by the employee. The circumstances which this can be done is where this was stated in letter of appointment or in the event that the employee voluntarily accepts the transfer.
With that being said, it should be recognized that the existence of a power to transfer and its scope and exercise of it are entirely two different questions. While the employer may have a right to transfer, the proprietary of any individual act to transfer may still be open to question.
Most likely, when an employee is asked to transfer, he may try to use the reason of inconvenience to avoid from being transferred. Sadly, it has been established that inconvenience is no ground for refusing to go to the new post. When a transfer order does not prejudicially affect the conditions of service, it cannot generally be challenged on the ground that the transfer may cause some inconvenience or domestic difficulties to employees. The employee is normally expected to adjust himself to the new environment.
On the positive side, it is now well accepted that the employer should consider the difficulties of employees in accepting transfer orders. It has also been consistently held on humanitarian grounds that the question of dislocation of children’s education and continued ill-health of the employee at the transferred place should be considered sympathetically.
Written by: Stanley Phang Weng Lam, LLB (Hons) Cardiff, CLP, Adjudicator;
Researched by: Gillian Lai Nai Ling
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