Legal Assistance in the event of Transfer or Dismissal

Questioner

Good day, My wife has been working at Kruidvat for 10 years now, She agreed to a pay cut 2 months ago. However, now they want to transfer her to another branch because she is said to be too expensive. And not a branch in our own city, but a branch in another. She doesn't have a car. There is no public transport from us there. She now has the option of either transferring to another branch or being fired. She has social anxiety disorder so a transfer would be terrible. She works part-time. Now the question is, are they allowed to just do this?...

Lawyer

It depends, but in this case what the employer wants seems unacceptable/impossible. Some general explanation (written for employees): In order to determine your rights and obligations, it is important to know, among other things, what is stated in your employment contract/regulations/collective labor agreement about changes in function/conditions/working hours, etc. The general principle is that an employer may not change something like this without the prior consent of the employee. However, there are exceptions: 1. If a unilateral amendment clause has been agreed, the employer does not need the employee's prior consent to amend the employment conditions. At least: •The amendment clause must be agreed in writing. The clause can be included in the employment contract, the collective labour agreement or a personnel guide that has been declared applicable. •The employer must have a weighty interest in the change, for example to avert possible bankruptcy or layoffs. And this employer's interest must outweigh the employee's interest, so that the employee's interest must yield. 2. However, if no unilateral amendment clause has been laid down, there are still options for the employer. Case law shows that there are strict conditions: •There must be changed circumstances which provide sufficient reason to make a proposal to change the conditions; •The proposal must be reasonable, taking into account all the circumstances of the case. •The employee can reasonably be expected to accept the proposal. Whether the change is reasonable depends on, among other things: • The nature of the changed circumstances. A judge will more quickly consider a proposal reasonable if the employer can demonstrate that the company is experiencing serious business economic problems. An example is offering a lower position to prevent the employee from being dismissed. • The nature and significance of the change. For example, changing the function may be considerably more significant than abolishing a bonus. • The employer's interest. Major financial problems may constitute a legitimate interest, but an increase in profits may not. • The employee's interest in not changing. In the event of a transfer, for example, a factor may be that the employee cannot travel far due to personal circumstances. • Is a reasonable phase-out arrangement possible? • Also check whether a collective labor agreement applies (no deviation from this is permitted) or whether a Works Council should be consulted. • And is the change collective or individual? It is therefore best to consult with an employment lawyer about the specific situation and circumstances. It is important to respond quickly to the employer and make the position clear and to protest against both the transfer and dismissal. I would be happy to help you with this. Please feel free to contact me without obligation.