Transfer of Workers and Necessary Conditions
The transfer of a worker without providing the necessary conditions for such mobility 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: It is considered that there is an 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. On the contrary, 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 an objective and reasonable cause. Otherwise, the employment relationship and the personal and family environment of the worker is affected.
Evaluation of the Hostile Act
When analyzing a hostile act, it must be evaluated whether the employer had the purpose of harming 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 has the power to modify certain 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