How to Make a Lawful Order for ‘Change of Workplace’ and ‘Change in Job Duties’

Characteristics

• I. Change of Workplace

There are two types of “change of workplace”, which often confuse both the employer and employee, as follows:

• (1) Relocation of the employer’s business establishment to a new location or to other business establishment of the employer
  
  • Relocation to a new business establishment means that the employer wishes to close his/her workplace/business establishment in order to reopen at a new location. For example, the original workplace of an employee or business establishment of the employer was located in Bangkok, but it was too small. Therefore, the employer moved to a new business establishment located in Nonthaburi and closed its operation in Bangkok.
  • Relocation to other business establishment of the employer means that the employer has multiple workplaces/business establishments, one of which it wishes to close and relocate the employees and business to another business establishment of the employer. For example, the head office was located in Bangkok and the factory was located in Rayong. Consequently, the employer closed down the head office in Bangkok and relocated it to join the factory in Rayong.
• (2) Change of work place
  This is a case where the employer has many workplaces or business establishments, and does not want to close any of them down. Rather, the employer merely wishes to transfer an employee who usually works in one of its workplaces/business establishments to another of its business establishments. For example, the employer has two branches, one of which is located at Sathorn and another at Siam; the employer instructs one of its sales staff who usually works at the Sathorn branch to work at the Siam branch instead.
   
• II. Change in Job Duties

  In this regard, an employee is ordered to change from one duty to another duty, or to transfer position. For example, the employee is ordered to change from the position of Human Resources Manager to be the Administrative Manager.

  In some scenarios, the employer’s instruction includes both a change of job duties and a change of the employee’s workplace. For example, the employee is ordered to change from the position of Human Resources Manager at Nakhon Pathom Branch to be the Director of Human Resources at the headquarters located in Chiang Rai.

  Legal Principles

  • i. Relocation of Business Establishment

  The relocation of business establishment is governed by Section 120 of the Labour Protection Act, B.E. 2541 (1998) (the “LPA”), which can be explained as follows:

  The employer is obliged to post a notice to each and all relevant employees in advance at a conspicuous place which each employee can see clearly. In this respect, such notice must contain the following messages:

  • (1) Which employees are to be relocated;
  • (2) Where the employees will be relocated to; and
  • (3) When the employees will be relocated.

   

  The notice must be posted in a manner described above in advance for a consecutive period of at least 30 days before the date of relocation of business establishment. In the event that the notice is not posted or the notice is posted but not in accordance with the 30 days period prescribed by law; the employer must pay special severance pay in lieu of advance notice of termination to each employee who does not wish to work at a new or other workplace/business establishment in the amount equal to the employee’s latest wages for the last 30 days of work.

  In the case where an employee considers that the relocation of business establishment significantly affect the maintenance of ordinary life of the employee or their family and, therefore, does not wish to work at the new or other business establishment of the employer; the employee must notify the employer in writing within 30 days from the date of posting the notice or from the date of relocation of business establishment, as the case may be - whereby the employee is entitled to receive special severance pay at not less than the rate of severance pay they are entitled to receive under Section 118 of the LPA.

  In light of the aforementioned, the employer must pay the said special severance pay in lieu of advance notice of termination and special severance pay, if any, to the employee within seven days from the date of termination of the employment agreement. In such regard, the contract of employment is legally considered as to be terminated on the relocation date.

  It is important to note that the notice from the employee must contain a reason showing how the relocation of business establishment will have a major impact on the ordinary life of the employee or their family. Examples of reasons why a change of workplace/business establishment has a major impact on ordinary living are as follows:

  • The employee has to find a new place to live or to pay a higher rental fee;
  • There is no one to take care of the employee’s child or parent;
  • The employee has to find a new place to study for his/her child;
  • The employee has to travel to work for longer distances and/or spend more time travelling to work;
  • The employee has to be responsible for the additional burden of expenses; and
  • It affects a relationship within his/her family.

  Having said this, merely the employee’s inconvenience from the above reasons may not be legally considered as to ‘significantly affect the maintenance of ordinary life of the employee or their family’; because this will have to be considered from the facts, on a case-by-case basis. Therefore, for the employer who disagrees with the reason provided by an employee, he/she has the right to file a complaint with the Labour Welfare Committee within 30 days as from the date of receiving the notice from the employee. The order of the Labour Welfare Committee shall be final unless the employer or employee appeals against such order to the court within 30 days as from the date of acknowledgement of the order. In the event the employer is the party bringing the case before the court, in order to entitle him/her to initiate a lawsuit, the employer is legally obliged to deposit a security with the court in the amount equal to the payment to be made under such order of the Labour Welfare Committee.

  As for the change of workplace discussed in Item I(2) above, it shares similar concepts as ‘change of job duties’, both of which will be discussed together below:

  • ii. Change of Workplace and Change of Job Duties

  Under Thai labour law, there is no express provision which governs the principle of change of workplace and change of job duties. However, based on court precedents, it is possible for the employer to change or transfer the employee’s workplace or duties, if it is conducted in the following manners:

  • (1) It considers as a lawful, justifiable and fair order of the employer (for example, there is no malice or intent of the employer to defame the employee, or impose too excessive burden of expenses on the employees);
  • (2) It is not a demotion, nor does it cause reduction of benefits, wages and welfare; and
  • (3) It is not contrary to the agreed working conditions between the employer and employee (for example, the employment agreement or work rules should have a clause stipulating that the employer may order change or transfer of the employee’s workplace or assigned duties).

   

  In the event that a change of workplace or job duties is satisfied by the above grounds, the employer shall have an executive power to change the employee’s workplace or job duties of the employee as it deems appropriate (Supreme Court’s decision nos. 2859/2526 and 635/2534).

  This is intended merely to provide a regulatory overview and not to be comprehensive; it is NOT a provision of legal advice. Should you have any questions on this or on other areas of law, please contact the following:

Chanakarn Boonyasith
Partner

Pattaranun Hanwongpaiboon
Associate