Home - What you need to know about transferring employees to a new location

UpdatesDec 21, 2011

What you need to know about transferring employees to a new location

If you have made a decision to transfer your business to a new location or are requiring employees to move locations, you will need to consult with your employees in accordance with any applicable award/enterprise agreement clause.

By Charles Power

One thing I’ve noticed quite a few subscribers asking about lately is what they need to be aware of when transferring employees to a new location.

If you have made a decision to transfer your business to a new location or are requiring employees to move locations, you will need to consult with your employees in accordance with any applicable award/enterprise agreement clause.

Transferring employees against their will can, in some contexts, result in a constructive dismissal by breaching a fundamental term of their contract.

For example, an employee may argue that the location of their employment is an essential term of their contract and a failure to abide by that term is a renunciation of the contract (i.e., a “repudiation” of the contract).

If an employee objects to being transferred, they may attempt to argue that:

  1. They have been dismissed (i.e., constructively) and therefore dismissed unfairly; and/or
  2. Their position is redundant and as a consequence they are entitled to redundancy pay.

In relation to unfair dismissal, you may seek to rely upon the “genuine redundancy” exception to unfair dismissal. In order to prove a genuine redundancy, you will need to show that:

In relation to redundancy, if the employee’s position no longer exists then the employee may be entitled to redundancy pay in accordance with an applicable agreement, the National Employment Standards, or a contract of employment.

As discussed above, this mainly depends upon whether the location of the employee’s employment is an essential part of the employee’s position.

Obviously a good way to secure employee agreement to the change is to offer some kind of relocation package, such as a one-off compensation payment or a car allowance for a 6 month transition period, in order to mitigate the extra expense and inconvenience presented by the new work location.

Stay tuned for Friday’s Bulletin.

I’ll go over the 7 things you must do when consulting with employees about major workplace change.

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