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Can I refuse a Transfer Assignment without jeopardizing my employment

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AndrewU


Arresto Menor
I was told that I have to transfer to a new location (Cagayan de Oro from Makati now). Do I have the legal right to refuse or ask for, say a month, to settle my affairs here first ? I initially asked for some two weeks kasi to settle my affairs here but was told that I am needed urgently. When I offered to settle the urgent matter first and come back temporarily afterwards to settle my affairs, I was told it is okay but it would be deducted from my benefits (airfare, time, etc.) I have been with the company for 17 years na kasi with no recollection anymore if there was an employment contract and feel sayang (separation pay, retirement) if I resign just because I do not want to go. Do I have some rights to at least defer the transfer until I can settle matters here ? I was just told on a Friday and said to leave for Cagayan de Oro on the following week's Tuesday or Wednesday with no clear time when I can be transferred back.

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Patok


Reclusion Perpetua
you can argue that.. ang layo nang CDO from Makati... parang constructive dismissal na yang ginagawa sayo..

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AndrewU


Arresto Menor
Sir Patok, thank you po for your advise. Parang constructive dismissal nga (considering the distance and lower position job there) except wala naman akong alam na nagawang kasalanam. When I replied that I need a month before I can go, ang sagot sa akin ay "Kung iyan talaga decision mo, pero baka wala na ako mabigay na trabaho sayo after that". So I guess that means baka ma-redundant ako if I don't go. May I pose two questions na lang po:
1) For many years I was a project engineer for their factory at Lipa and then assigned to another project in a factory near there. Since the project engineer in their factory at Lipa and nearby areas are relatively new hires, is there legal basis for me to argue na dapat the new hires should be the first to go since I can easily take their jobs (except my salary is higher because of my seniority)? Or is this management prerogative talaga?
2) If I decide to go and try the Cagayan de Oro for a few months, will I still be able to claim constructive dismissal? Or will it be too late because I already accepted the assignment?
Again salamat po, sir!

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Patok


Reclusion Perpetua
yes, it should be last in first out, seniority first.

if you plan on filing a case, make sure everything is documented, and dont accept the assignment, pag ni accept mo kasi eh bakit ka pa mag fi file nang case..

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AndrewU


Arresto Menor
Thank you very much po, sir Patok! Ano po ba ang i-document ko? Right now kasi, mostly verbal lang. Kinausap lang ako last Friday to go at gusto June 11 or 12 alis na. E-mail nya ako just this Monday with copy to HR as to when I am going. Sinagot ko I need at least one month to prepare. Another E-mail saying he wants to talk to me, wherein he said nga "Kung iyan talaga ..... baka wala na ako mabigay na trabaho sayo after that one month". Then E-mail from me asking if it would be possible to send someone else and I take their place. Then his reply na there is no one else. Of course I know there are several project engineers with the same profession as me so it probably means no one wants to go there.
May I confirm also your recommendation not to accept the assignment? To explain kasi, ayaw ko sana talaga umabot sa kasohan. I was thinking na i-tiis ko na lang to do this one project (since this is a project assignment naman) which is scheduled to be finished early next year and just refuse if the next assignment is still for there. However, I am concerned that this might weaken the case if they refuse to accept and order me to stay there permanently na. Baka it might be no longer considered constructive dismissal. Is this what you are saying also?
Really appreciated your advise po.

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Patok


Reclusion Perpetua
tell them you need the transfer in writing.. di ako lawyer pero dapat i document mo lahat.. and yes, pag pumayag ka parang hindi na constructive dismissal yun.. kaya ka nga mag file nang case kasi ayaw mo lumipat don..

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AndrewU


Arresto Menor
Thank you very much sa payo nyo Sir Patok! I think tama talaga ang assessment mo sa situation. Pinagisipan ko pa po now at baka may ibang solution that can be done pa, but at least napalinaw nyo kung ano yung ginagawa sa akin.
To me I am surprised that you are not a lawyer as you seem more knowledgeable than some of the "lawyers". Anyway, I really appreciated your advise.

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attyLLL


moderator
refusal a transfer is considered insubordination so i'd tread carefully. and it is part of the management prerogative to effect a transfer. if you file a complaint, it has to be shown that it is being done in bad faith.


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AndrewU


Arresto Menor
Yes, AttyLLL I am well aware of the difficulty of ordinary employee to stand versus big company management in terms of financial capability and legal resources. This is why I am trying to ask for advices and thinking of a better solution. I do not want it to be a decision whether to suffer being torn away from families and be in a strange land with no better position or pay (may even be worse) from what I have presently versus alternative of being kicked out of the company. Can you site some examples of "bad faith"? I think it would help me.

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attyLLL


moderator
basically, a transfer in bad faith is done to force the employee to resign.


_________________
[i] Visit our FB Page: BPO Employee Legal Advice
Warning and Disclaimer: I am not your lawyer; and you are not my client. With the limitations of an  Internet forum, a thorough review of your concern is not possible. View my comments at YOUR OWN RISK. It is best to actually retain a lawyer for your individual concerns.
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AndrewU


Arresto Menor
Thank you, AttyLLL. Unfortunately, I could not think of any way to show "it is being done in bad faith". I am sure that this order to transfer to be away from family and take lower job makes me think of resigning. But I could not think how to prove that this is their intention.

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HR Adviser


Reclusion Perpetua
The "bad faith" is transferring you in a lower position and from a far away city. Before a person can be demoted, he must have an evaluation that he was not able to meet the standard of his current position. If you are not given such, you may contest it as constructive dismissal.

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AndrewU


Arresto Menor
Thank you, Mr. HR Adviser. No, I was not given such evaluation just "pressure" to go right away and threat that I will be "redundant" if they find someone else to go since they have no job for me here. This is of course not true because I know that they are planning to hire new (probably cheaper) personnel. Anyway, thank you again for clarifying

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HR Adviser


Reclusion Perpetua
Andrew, by the way, it's Ms. Smile

If you are a redundant employee, they should have paid you a separation pay. So I guess your speculation is true that your company is planning to hire a new personnel.

Good Luck

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AndrewU


Arresto Menor
Thanks, Ms. HR Adviser

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