Managing employee’s relocation, transfers

This can be on a short-term basis to deal with a lack of resources or it can be an official secondment or a permanent arrangement.
It is important that before assigning an employee, employers need to take proper steps to protect themselves against potential breach of contract or constructive dismissal claims.

It is common to see express mobility clauses written into contracts of employment which purport to grant the employer the power to require the employee to change place or location of work.
Even where there is no express clause, most contracts of employment will be deemed to include an implied mobility clause.

If there is any chance that the requirement to relocate may not be welcome to the employee, the employer must tread carefully.
Relying on an express or implied term in the contract without regard to the impact of the move on the employee is likely to amount to a breach of trust and confidence, potentially sparking a constructive dismissal claim.

A fair process is vital. This means notifying the employee, ideally in writing, of the proposed move and the reasons for it and determining in good faith whether any objections he has to it can be overcome.
If this process leads to an impasse then the employer may be within their right in proposing the employee’s dismissal, perhaps for redundancy if there is no work left in the current location or for some other substantial reason if the requirement to move is for good business reason but the employee still refuses.

The refusal to comply with an express mobility clause may technically be misconduct, but that is rarely an argument worth pursuing unless there is clearly no good reason for the employee’s refusal to move, i.e. no adverse impact upon him if he or she does.
According to psychologists, relocation is among the most stressful events that can happen to a person or a family.

Changing jobs often occur when relocating is high on the stress index.
For many people the decision to relocate involves a complex set of variables of a financial, personal and emotional nature. These factors contribute to the stress in varying degrees depending upon the individuals involved.

The questions above can be broken down into two broad categories: objective and subjective.
The emotional and personal aspects of relocation are subjective and thus difficult to model.
Fortunately this is not true of the financial ramifications which are more objective and easier to quantify.

As businesses adapt to a changing economic environment, an employer cannot always predict with certainty the location it will require employees to work during their employment.
Commercial necessity may require individuals, departments, or the entire business to be relocated, sometimes a few blocks away and sometimes much further.

Relocating employees can have a myriad of legal consequences, particularly where employers are required to balance the family responsibilities of their employees with the commercial realities of business.
Following the direction to relocate, employees have brought unfair dismissal, breach of contract and discrimination claims against their employers, some genuine and some baseless.

However, from a common law point of view, management has the right to transfer an employee as long as this is in the best interests of the business.
Word of advice to employers: Employers should ensure that in contracts of employment, wherever possible, there is an express provision for the position to be relocated, with relocation not amounting to repudiation of the contract or fixing an “unwanted” or “non-performing” employee.

This dirty and unorthodox tactic will only work in the short term but will backfire in the long term.
When relocating employees, employers need to ensure that the requirement to relocate is reasonable, in all the circumstances.
Employers should ensure that the reasons behind the relocation are reasonable, taking into consideration factors such as the size of business, requirements of the business, financial, sociological and psychological effects of such transfers.

Basically the employee should be consulted and get their side of the story, though you have the final say.
If the directive to relocate is reasonable, relocation is provided for in the relevant industrial instruments.
Employers, however, should make a reasonable effort to reduce the impact of the relocation on employees, by assisting them to manage their family responsibilities.

If this is done they will likely have a strong defence in the event that an employee does bring a claim.
The following factors are also critical when considering relocating an employee.

The size and nature of the employer. The nature of the operational requirements and duties performed by the employee.

Where the duties may be performed, the employer’s policies and procedures, assessment of individual circumstances and the rational for the requirement.

The nature and effect of the requirement on the individual, the consideration, assessment and availability of less or non-discriminatory methods to achieve the same objective, and the cost or financial imposition created by the requirement.

Reference can also be made to Jane Kanonhuwa v Cotton Company of Zimbabwe (Cottco) (HH10/98).
Jane Kanonhuwa was employed by Cottco as a clerk at its Sanyati depot. She asked for and was granted a transfer to Harare to join her husband who worked there.
Later, management decided to transfer her again, this time to Manoti depot in Gokwe.

Kanonhuwa challenged the transfer and sought relief from the High Court.
In her court application, Kanonhuwa alleged that her transfer was a disciplinary measure disguised as an administrative decision.
The High Court invoked the common law doctrine of legitimate expectation which provides that an employee has a right to be given a fair hearing before any employment decision adverse to his or her interests is taken.

The court decided that the manner in which Cottco intended to transfer Kanonhuwa was unfair and that the views, wishes and personal circumstances of the applicant were relevant and ought to have been taken into consideration before the decision to transfer was made.
The High Court set aside Kanonhuwa’s transfer and ordered Cottco to meet the costs of her court application.

The reasoning was basically that the applicant had been transferred to Harare on account of her personal circumstances, the decision to transfer applicant to a depot about 400km away without reference to her was rather unfair and outrageous.

As outlined above, if relocation is unreasonable and if employees decline, use of such draconian clauses such as refusal to follow a lawful instruction or an act or conduct inconsistent with the express or implied conditions of one’s contract will not work.

The relocation has to be done in good faith, it has to be reasonable and making business sense (not a tool to fix) and also legal for it to be binding.
However, employees are warned against just refusing to relocate as this may lead to dismissal.
Where the employer can reasonably justify relocation, employees in the absence of better reasons are advised to comply as they have duty of subordination and duty to protect employer’s interests, ahead of own personal interests.

You can also see Danai Guruva v Traffic Safety Council of Zimbabwe (Case Number SC30/08) where the Supreme Court ruled in favour of the employer as employee transfer is a prerogative of the employer, not the other way round.

Basically there is nothing wrong with transferring employees but there is obviously something wrong if you do not do it properly.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.