EMPLOYMENT TRANSFER OF EMPLOYEE

EMPLOYMENT: TRANSFER OF EMPLOYEE

Publishes by The Daily Star on  January 28, 2014 (Link Here)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.

Query
I have been working with an office, which has its branches situated all over the country. I am currently working at the head office which is located in Dhaka. Recently, I have been served with a transfer order to Khulna from the head office but such transfer order will have an adverse effect on my personal and family life since me and my family is based in Dhaka from the outset of my life. Therefore, it is my query that whether I have any legal course of action against such transfer order and whether such transfer order is legal?

Response
I understand that you are facing difficulty with the recent transfer order passed by your employer as dislocation from Dhaka will adversely affect your family and social lives. You have not, however, stated your designation as well as whether there is any transfer clause in your employment contract. Since your employer has branches across the country, it is likely that the employment contract may contain a transfer clause. If this is so, you need to see whether your employer while serving the transfer order is in conformity with the transfer clause of the contract.
In addition, internal rules regarding transfer contained in your office Service Rules (if any) of your concerned establishment should be considered to ascertain whether there is any procedure for grievance against transfer order. Or whether the employer’s discretion to transfer is fettered by the obligation to take into account certain circumstances. If there is any such regulation in your office Service Rules then requisite actions can be taken following the grievance procedure, provided that the requirements of transfer are not met. On the other hand, if the service rule and/or the employment contract provides an unfettered right upon the employer to transfer, then you have no legal remedy absent the transfer.

Considering that neither your employment contract nor the service rules provides any provision for transfer, it is still lawful for the employer to transfer an employee from one branch to another or from the head office to any branch. They will not be lawfully allowed to do so, only if there is any stipulation in the employment contract or the service rules that you will be assigned only in the head office and not in the branches.
Finally, I can find that the only statutory restriction of transfer is provided under the Bangladesh Labour Act 2006 (as amended in 2013) whereby, if you are an office-bearer of any trade union, then your employer cannot transfer you from one district to another, without your consent.
To summarise, your consent for the transfer is required only if you are an office bearer of a trade union, which is not clear from your query. Otherwise, the employer’s act of issuing the transfer order will be treated as lawful, except if – the employer fails to abide by the transfer guideline (if any) provided in the employment contract or in the office service rule; or – if there is any specific restriction in your employment contract that you will not be transfer or will only be based in the head office.
I hope the above will help you to ascertain your legal position. I wish you a comfortable and successful professional live.

For detailed query contact: omar@legalcounselbd.com.