Employment Law: Transfer and Mobility at Work
Employment Law: Transfer and Mobility at Work

Employment Law: Transfer and Mobility at Work

It is the norm that a company may reasonably require from time to time to transfer or mobilize its employees with different permutation as follows:-

(a)           from one department to another; or

(b)           from one workplace to another; or 

(c)           from one branch to another; or

(d)           even from one Company to another within that organization or group of companies. 

The law in this respect is settled by virtue of the Court of Appeal case of Ladang Holyrood v. Ayasamy Manikam & Ors [2004] 2 CLJ 697 where it was held as follows:-

“It is well established in Industrial Law that the right to transfer an employee from one department or another or from one post of an establishment to another or from one branch to another or from one Company to another within the organization is the prerogative of the management and the Industrial Court will ordinarily not interfere. But if the transfer is actuated with improper motive, it will attract the jurisdiction of the Court. The power to transfer is, therefore, subject to, according to Ghaiye’s Misconduct in Employment the following well recognized restrictions:

 

(a)           There is nothing to the contrary in the terms of employment;

 

(b)           The management has acted bona fide and in the interests of its business;

 

(c)           The management is not actuated by any indirect motive or any kind of mala fide;

 

(d)           The transfer is not made for the purpose of harassing and victimizing the workmen; and

 

(e)           The transfer does not involve a change in the conditions of service.”

The court in this case also held that such right to transfer exists even in the absence of a contract of service unless there is a contract to the contrary and it was actuated by mala fide or any improper or indirect motive to the detriment of the employee.

This principle was recently reaffirmed in the case of Anuar Jamaludin & Ors v Metrology Corporation Malaysia Sdn Bhd [2019] 2 LNS 2558.

The law also recognized that some inconvenience may be caused when one is required to move from one place to another. However, such inconvenience is a normal consequence of any relocation as long as no proof of mala fide or improper motive or any material change in the terms and conditions of employment.

Therefore, for as long as the Company’s action to transfer is lawful, any subsequent dismissal of the employee, be it dismissed by the Company or the employee resigned in protest, due to the transfer, should not be reduced to unjust dismissal or constructive dismissal.

 
About the Author: 

This article was written by Chia Swee Yik, Partner of this Firm (+6016 2148 218, chia@chialee.com.my), who endeavors to provide practical advice on employment law.

Feel free to contact him if you have any queries.

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