When an individual is hired, they do not choose an employer solely because the salary and benefits are superior. The type of job (position) and its location also hold significant value and importance, no less than the salary itself. A person who is unemployed might find a decent-paying job, but if the workplace is very far from their city of residence, they might prefer to remain unemployed. Another person might take advantage of such an opportunity, undeterred by the distance. Even that person would not hesitate to leave their current job if they found their desired work in their preferred location.
For some, moving from place to place is easy. For others, being employed far from their current residence can be as challenging as being unemployed. From a cost perspective, working in a different country can be not only challenging but often unfeasible. Sometimes, moving from one place to another requires a year or more of thought and planning. However, thinking and planning alone are not enough. After much deliberation, when a decision is made, the desired job might not be available at that time. Or, the job might be available, but due to children’s schooling, one might have to wait until the summer holidays.
The points we have discussed so far might seem unrelated to Cassation decisions or the Labor Law. However, if transfers are not examined in terms of their social impact on employees, it becomes difficult to interpret their legality and appropriateness in a manner that achieves the fundamental objectives of the Labor Law. Therefore, the social aspect and implications of transfers must be thoroughly explored.
Workplace Transfer
In almost all cases decided by the Cassation Bench, the issue of workplace transfer arose in connection with the termination of an employment contract. Accordingly, the Cassation Bench has maintained a firm stance that absence from the new assigned workplace for five consecutive days following a transfer order constitutes a sufficient reason for terminating an employment contract, as per Article 27(1)(b) of Proclamation No. 377/96. These decisions were rendered when the former Proclamation No. 377/96 was in force. Under Article 27(1)(b) of Proclamation No. 377/96, absence from work for five consecutive days was a ground for dismissal without notice. This article has been amended by Proclamation No. 1156/2011 to “absence from work for five days within six months after receiving a written warning.” Since the legality of transfers often arises in the Cassation Bench in relation to the termination of employment contracts, particularly absence from work, the legal interpretations regarding transfers under the former Proclamation continue to be binding under the amended Proclamation. Therefore, the following review of transfers will refer to Proclamation No. 377/96.
Among the files where the legality of transfers was interpreted in connection with absence from work, the following are examples:
- 29415 (Appellant Water Action and Respondent Yilma Assefa, January 27, 2000 E.C., Vol. 6)
- 37778 (Appellant Addis Spare Parts Importer Distributor S.C. and Respondent Ato Kassahun Kebede, November 4, 2001 E.C., Vol. 8)
- 41623 (Appellant Abba Transport PLC and Respondent Ato Samuel Kidane, March 8, 2001 E.C., Vol. 8)
- 38605 (Appellant Cheshire Foundation and Respondent Ethiopia and Respondent W/ro Meseret Workagenegnu, February 19, 2001 E.C., unpublished)
- 38189 (Appellant Ropack International PLC and Respondent Yidersal Aimero, May 27, 2001 E.C., Vol. 8)
- 40692 (Appellant Ethiopian Red Cross Society Dessie Wello Zone Branch Office and Respondent Ato Getachew Beyene, March 24, 2001 E.C., unpublished)
- 46958 (Appellant Coffee Plantation Development Enterprise and Respondent Ato Tadesse Ambo, December 20, 2002 E.C., unpublished)
In the aforementioned files, the employment contract was terminated because the employee failed to report to the transferred workplace for five consecutive days, and the Cassation Bench affirmed the legality of such dismissal measures.
The employee’s argument for absence from work (e.g., in File Nos. 38605 and 37778) was that the termination of the employment contract was unlawful because they had filed a case challenging the transfer with the competent judicial body and the outcome was not yet known. This argument was not accepted by the Cassation Bench. According to the court’s stance, if an employee wishes to challenge a transfer, they must report to the transferred location, commence work, and then file their case with the judicial body located there. While the legality of dismissal measures taken in connection with workplace transfers has been accepted by the Cassation Bench, the legality of the transfer itself was not examined in the above-mentioned files. However, the stance that an employee must report to the transferred location and commence work before filing a case challenging the transfer indicates that the legality of the transfer was implicitly presumed.
The legality of workplace transfer was directly examined as a central issue in Supreme Court File No. 54326 (Appellant Anbessa Shoe S.C. and Respondent W/ro Ethun Ayalew, November 3, 2003 E.C., Vol. 11), where the decision of the West Amhara Labor Affairs Adjudication Board, which found the transfer unlawful, was upheld by the Cassation Bench. The Board based its decision on the collective agreement, finding that the transfer was effected outside the reasons enumerated in the collective agreement. The Cassation Bench affirmed the Board’s decision, stating that the Board’s conclusion was a factual or evidentiary assessment, not a question of legal interpretation.
It is difficult to definitively state the Cassation Bench’s stance regarding the employer’s power to take transfer measures, although it is not hard to guess. Since the question arose in connection with absence from work and termination of employment contracts, the court responded to the termination rather than the legality of the transfer. In File No. 54326, the Labor Affairs Adjudication Board’s decision was upheld because its conclusion that the transfer was effected outside the collective agreement related to an evidentiary assessment. From this perspective, the legal basis of transfers has not been interpreted by the court. However, in File No. 38605, the mention that transfer is directly related to the employer’s managerial prerogative, and the stance that an employee will face dismissal if they do not report to the transferred location, regardless of whether the transfer is lawful or not, suggests that the employer’s power to transfer employees from place to place has been accepted.
Job Position Transfer
Regarding job position transfers, the court’s strong stance is clearly visible. As can be understood from the decisions rendered on this matter, the employer is granted unrestricted power to effect job position transfers. This power is stated to derive from their managerial or employer capacity. Therefore, when an employer makes a job position transfer, the action is entirely within the employer’s purview, and the employee cannot challenge its legality or oppose the measure. In File Nos. 44044, 38189, 50182, 40938, and 44033, the employer’s power to transfer has reached an almost untouchable level. Indeed, in File No. 37256, and in relation to workplace transfers in File No. 38605, the court used the term “prerogative” to describe the employer’s unrestricted power, thereby giving it a regal character.
Although the decisions do not explicitly place clear limitations on the employer’s power in terms of its content and procedural preconditions when effecting transfers, the repeated use of phrases like “similar salary and similar job position” suggests that the court considered them as criteria, even if not strict measures, for determining the appropriateness of the transfer. In File No. 44033, the court, noting that the respondent was transferred to another job position and location “maintaining their salary,” underscored that the appellant (employer) has the administrative right to transfer the respondent “without diminishing their rights.” In File No. 40938, the court, noting that the respondent’s job grade and salary were not reduced upon transfer, ruled that there was no legal reason to deem the employer’s action of transferring the employee from one job position to another “similar job position” without affecting their rights as unlawful. A similar stance was reflected in File No. 50182, where the commentary on this point reads as follows:
“The administrative adjustment taken by the appellant to transfer the respondent from their previous job position to a job position with a similar grade, salary, and benefits is an action carried out under Article 13, sub-article 2 of Labor Affairs Proclamation No. 377/96. The respondent has no reason to file a suit preventing the appellant from performing an administrative function explicitly permitted by law, and their rights and benefits were not affected by working in a similar job position.”
In File No. 44044, although the job position to which the respondent was transferred was clearly different from their previous job position, the fact that their salary was not reduced made the employer’s transfer action lawful. While “similar job position and similar salary” were repeatedly mentioned in the court’s decisions, their mention was merely “in passing” rather than imposing a limitation on the employer’s power. In other words, a clear stance such as “the employer’s transfer action is lawful only when they transfer the employee to a similar job position with a similar salary” was not explicitly reflected. Indeed, we can say that the court gave importance to the non-reduction of salary rather than the similarity of the job position, as the transfer was not deemed unlawful even when the job position was clearly changed.
For example, in File No. 40938, the appellant transferred the respondent from a security officer position to an unspecified job position, stating that they would work only according to orders given by a immediate supervisor. In File No. 44044, the respondent was transferred from a cashier position to a license coordinator position. The court, in its decisions on allegedly similar job positions, merely stated that it gained understanding during the litigation process that they were similar, without providing an explanation of what “job position similarity” means or how it is measured, and without truly examining whether job position similarity existed.
In conclusion, although “similar salary and job position” were repeatedly mentioned in the court’s decisions, in practice, they have never served as a criterion for the legality of a transfer action.
Transfer to an Affiliate Company
Despite the broad power granted to employers to effect workplace and job position transfers, the Cassation Bench has placed a limitation on the employer’s power to transfer an employee to work for another employer entity (an affiliate company). Such a transfer is not lawful, even if the employer’s company regulations explicitly permit it. (Appellant D.H. Geda Blanket Factory PLC and Respondent W/rit Kidist Getachew, December 30, 2005 E.C., File No. 83068, Vol. 14).
In File No. 83068, the respondent was working for the appellant company when the appellant transferred her to work at D.H. Geda Trade and Industry PLC, Nekemte Branch. The respondent filed a suit opposing the transfer, and the appellant issued a letter stating that her employment contract was terminated because she did not report to the transferred workplace for five consecutive working days. The respondent then filed a suit claiming unlawful termination and seeking various payments. In its response to the suit, the appellant argued that the respondent was transferred according to the company’s regulations, and since she did not accept the transfer and report to her workplace, her dismissal was proper, citing the binding decision of the Federal Supreme Court Cassation Bench in File No. 37778 as a sufficient reason for terminating the employment contract.
The appellant’s argument was accepted by the Federal First Instance Court where the suit was filed, and the respondent’s claim of unlawful dismissal was rejected. The Federal High Court, which heard the respondent’s appeal, after hearing the arguments of both parties, ruled that according to the Cassation decision cited by the appellant, an employer can transfer an employee only to another workplace of its own branch, not to another entity with a separate legal personality under the name of an affiliate company. Therefore, both the transfer and the dismissal measure taken subsequent to the transfer were deemed inappropriate, and the lower court’s decision was reversed. Although the appellant filed a cassation appeal, claiming that the appellate court’s decision contained a fundamental error of law, the appeal was not accepted. The court rejected the appeal, citing as a reason the absence of any agreement or obligation, either in the employment contract or in another document, given by the respondent individually or jointly to be transferred to an affiliate company.