Labor Transfer and Necessary Conditions
The transfer of a worker without providing the necessary conditions is considered an act of hostility, according to the recent resolution of the Labor Inspection Court.
Precedents
Resolution No. 005-2024-Sunafil/TFL establishes administrative precedents of mandatory observance:
- Hostility without justification: Intention to harass the worker when the employer, without justification, changes its criteria to provide per diem and tickets to the mobilized worker.
- Subsequent payment of per diems: Subsequent payment of per diems does not justify the initial omission. Otherwise, it evidences a unilateral decision of the employer.
- Objective cause for the transfer: For the transfer of an employee to be valid, there must be a fair and reasonable cause. Otherwise, the employment relationship and the personal and family environment of the worker are affected.
Hostile Act Evaluation
When analyzing a hostile act, it must be evaluated whether the employer wanted to harm the worker. This evaluation is based on indications and evidence showing that the exercise of the employer’s power of direction or ius variandi has not respected the principle of reasonableness.
Employer’s Powers and Limits
Although the employer can modify specific elements of the employment relationship, this action must be framed under criteria of reasonableness and objectivity. The employee’s rights must not be affected.
Source: SUNAFIL