Dear Atty. Vlad,
We have a restaurant business based in Davao City but with a branch in Metro Manila. After a strategic planning session, management decided to expand our restaurant operations in Metro Manila. We have had to transfer our senior and more experienced waiters and other kitchen crew from our main restaurant in Davao, effective in five days, so that we do not have to train new employees for the opening of the new restaurants.
Once the senior waiters and kitchen crew received their notices of transfer, they all complained and said that they do not want to be transferred because they will be too far away from their families.
Some also said that in the past, they were given a period of at least two months to relocate before the transfer becomes effective. They said that they will be forced to resign if management forces them to transfer. However, in their employment contracts, they agreed that they can be transferred to any branch of the company. May our company compel the employees to transfer?
As an employer, your company has the inherent right to transfer or reassign employees for legitimate business purposes. The employer, however, must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee, nor does it involve a demotion in rank or a diminution of his salaries, privileges and benefits — otherwise, the transfer would be tantamount to constructive dismissal.
From what you narrated, the employees your company wants to transfer are waiters and kitchen crew and not the head waiter and or chef. As such, the potential employees for your Metro Manila branch could be hired from within the area. There is also no mention that your Davao restaurant reduced operations. It does not appear that there is a genuine business urgency necessitating the transfer. The transfer is legally indefensible.
In the case of Yuco Chemical Industries Inc. vs Ministry of Labor and Employment, et al. (G.R. L-75656, 28 May 1990) the Supreme Court said that there is no genuine business urgency that necessitated the transfer, considering that the job in issue does not require special dexterity, and many workers (like your restaurant’s waiters and kitchen crew) could be contracted right in the new work area to perform that particular line of work.
With regard to the fact that the employees agreed in their employment contracts to be transferred to any branch, such fact should not be taken in isolation, but rather in conjunction with established company practices (Zel T. Zafra, et al. vs CA, et al., G.R. 139013, 17 September 2002). You mentioned that previously, employees were given two months to relocate, and this time, they were only given five days. The company should not compel the transfer under these circumstances — without the usual notice, which would be economically and emotionally burdensome on the part of the employees and their families and would amount to constructive dismissal if employees are forced to resign.
I hope that I was able to answer your queries based on what you shared with me.
Atty. Vlad del Rosario
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