How to Lawfully Adjust the Post of an Employee in China?
According to Article 35 of the Labour Contract Law of the PRC, the labour contract cannot be amended unless the employer the employee have reached a consensus on such amendment. The post of the employee is an essential provision of the labour contract. The employer should in principal negotiate with the employee and reach a consensus before adjusting the post of the employee. The employer may encounter some legal risks if it fails to reach a consensus with the employee and adjust the post of the employee unilaterally.
In practice, the employer usually stipulates in the labour contract that the employer is entitled to adjust the job description or position of the employee at any time if needs arise in its production and operation. Is it possible for the employer to adjust the post of the employee in accordance with such provision in the future?
Firstly, it is clear that it is not in violation of the prohibitive provisions of laws and regulations to stipulate in the labour contract that the employer is entitled to adjust the post of the employee based on its needs of production and operation. It should be deemed that such provision represents the true expression of intent of the parties and is binding upon both parties.
However, when the employer adjusts the post of the employee in accordance with the foregoing provision in the labour contract, it should ensure that the post adjustment is reasonable. In judicial practice, the courts and arbitral tribunals usually consider the following elements to determine the reasonableness of the adjustment:
- The post adjustment is made out of the needs of the production and operation of the employer;
- The employee’s salary of the new post is evenly matched to the salary of the former one;
- The new post is related to the former one and the employee is competent for the new one;
- The post adjustment is not used for insult or punishment;
- There are no other circumstances that would violate laws or regulations.
If the post adjustment is not reasonable and results in the resignation of the employee, it shall be deemed that the employee is forced to terminate the labour contract. The employer shall make severance pay to the employee in accordance with the law. If the employer terminates the labour contract on the ground that the employee refuses to the post adjustment, it shall be deemed as unlawful termination of the labour contract. The employer shall pay twice of the severance pay to the employee as a compensation.
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