When a transfer due to reorganization becomes questionable

Persida Acosta

Persida Acosta

Dear PAO,
I received a letter from our company, stating that I will be transferred to another place. According to the letter, the transfer is part of the company’s reorganization plan. I understand that transfers are bound to happen because of the reorganization, but I could not accept the manner by which supervisors to be transferred are being chosen. It appears that they are targeting those who are openly pursuing the establishment of a union in the company, including me. Am I bound to follow the directive of the company? Can I question my employer’s decision to transfer me?

Dear Aris,
Employers have the right to direct the affairs of their business and to make business decisions in accordance with their own independent judgment, which is collectively referred to as management prerogative. It entails the right to regulate all aspects of employment, including the freedom to prescribe work assignments, working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of work (Goya Inc. vs. Goya, Inc. Employees Union-FFW, 689 SCRA 1).

However, management prerogative in its encompassing breadth is not absolute. Its exercise is regulated by laws and rules aimed at guaranteeing the protection of the correlated and equally important rights of employees to humane working conditions and security of tenure. For a valid exercise of management prerogative, the employer must demonstrate that: (1) The transfer is not unreasonable, inconvenient, or prejudicial to the employee; (2) it does not involve a demotion in rank or a diminution of salary and other benefits; and (3) it is not motivated by discrimination or made in bad faith, or effected as a form of punishment or demotion without sufficient cause (Lanzaderas vs. Amethyst Security and General Services, Inc., 404 SCRA 505).

In your narration, you mentioned that the company seems to target those who are openly pursuing the establishment of a union. If this is true, then the decision to transfer you and the others who are similarly situated is an act of discrimination. It is tainted with bad faith, thus, making the transfer illegal. Consequently, you may question the decision of the employer to transfer you.

Moreover, if your company indeed targets employees involved in establishing a union, its responsible officers may also be held liable for committing an unfair labor practice.

The Labor Code of the Philippines abhors unfair labor practices and their pernicious effects. Such acts not only violate the constitutional right of workers and employees to self-organization, but are also inimical to the legitimate interests of both labor and management. They disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. As a result, unfair labor practices constitute a violation of the civil rights of both labor and management, as well as a criminal offense against the State for which the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices may be held criminally liable (Art. 247).

One of the acts that the Labor Code specifically declares as an unfair labor practice of employers is interfering with, restraining or coercing employees in the exercise of their right to self-organization. (Art. 248). To determine if there is an unfair labor practice, the test to be applied is whether the employer has engaged in conduct that, it may reasonably be said, tends to interfere with the free exercise of employees’ rights. Direct evidence to show that any employee was in fact intimidated or coerced by statements of threats of the employer is not necessary. Proof that there is a reasonable inference that the anti-union conduct of the employer does have an adverse effect on self-organization and collective bargaining is sufficient (T&H Shopfitters Corp. vs. T&H Shopfitters Corp. Workers’ Union, G.R. No. 191714, February 26, 2014).

Using the above-mentioned test, if the act of your employers in targeting employees who are actively pursuing the establishment of a union can be proven as a move to hinder their efforts to form a union, then the same may constitute an unfair labor practice for which the responsible officers of the company may be held administratively, civilly and criminally liable.

We hope that we were able to sufficiently answer your query. Bear in mind that this opinion is based on the facts you presented and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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