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When can you fight a job transfer?

by Masako Suzuki

A foreign reader writes: “My husband is working for a company that has branches in Shinagawa, Narita and Ibaraki. He used to work at the Shinagawa branch, and then he was forced to move to the Narita branch.

“The owner of the company only gave us two weeks’ notice to move to Narita. I lost my teaching job in Tokyo and my son lost his opportunity to go to a nursery there, too. In addition, the company did not pay the expenses for us to move to Narita. However, the company owner told my husband that he would lose his job if he did not move.”

It must have been tough to pack up and move house in just two weeks — especially as it seriously affected your job and your child’s day care arrangements. That said, the type of order your husband received is very common in Japan. So, the question is: Is the company’s order to transfer legal?

Courts usually start from the assumption that an employer can order job transfers reasonably freely, except in cases where a particular job type or workplace is specified in the employee’s contract. In such cases, for a transfer to be able to take place, a new agreement would need to be reached between the employee and employer and a new contract drawn up reflecting the new workplace or job description.

If your husband’s company employs 10 or more workers, the firm is legally required to have a set of rules of employment (shugyō kisoku). If these rules say that the company may order a job transfer, the order would then likely be considered legitimate, unless your husband’s contract includes any clauses that contradict that.

However, this does not mean the company can order a transfer in every case. The transfer order may be considered an abuse of rights and invalid if it can be proven that the move is not absolutely necessary and that the negative impact on the employee is particularly extreme.

So, where would the law be likely to stand in your husband’s case?

Certainly, the relatively short distance between Shinagawa and Narita is unlikely to work in your husband’s favour. In fact, in an important legal precedent, a judge once ruled that a transfer request was valid even though the couple concerned had to live separately because of the move.

However, the order would be considered illegitimate if it was issued based on a questionable motive — e.g., out of malice. In addition, the conditions of the transfer — the short notice and the fact that you had to shoulder the full burden of moving — seem harsh. Therefore, the transfer might be considered invalid if such orders are issued quite often or if the company does so even though it is not absolutely necessary.

Finally, labor law is silent on the question of who should pay for moving costs. However, this issue may be covered in the company’s employment rules.

A company’s shugyō kisoku must be made known to its workers, either by having them displayed in the workplace or distributed to employees (Article 106, Labor Standards Act). I strongly recommend your husband checks what is written about transfers in these rules before deciding on his next move.

Also, he should consider what steps can be taken to improve working conditions — and in particular, the conditions for job transfers — through negotiation between the company and its labor union.

Masako Suzuki is an attorney with the Foreigners and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (www.t-pblo.jp/fiss) Phone: (03) 6809-6200. Send your questions to lifelines@japantimes.co.jp .