*Lawyer Dang Van Vuong – Deputy Head of Phong & Partners Law Firm, responds:

During the course of employment, an employee may be temporarily assigned to perform work different from that agreed upon in the labor contract due to urgent business needs or force majeure circumstances in the course of production or business operations. However, in practice, there are cases where employers abuse their right to reassign employees, arbitrarily reassigning them to perform work not specified in the labor contract, thereby infringing upon the lawful rights and interests of the employee. To prevent such abuses, Vietnamese labor law provides specific circumstances in which an employer is permitted to reassign an employee to a position other than that stipulated in the labor contract, and simultaneouslyout certain conditions to ensure the protection of the employee’s rights and interests.

First, is the reassignment in accordance with the law?

Article 29.1 and 29.2 of the 2019 Labor Code specify the circumstances under which an employee may be assigned to perform work other than that specified in the labor contract as follows:

“1. In the event of unforeseen difficulties caused by natural disasters, fire, dangerous epidemics, the implementation of measures to prevent or remedy occupational accidents, occupational diseases, power or water supply incidents, or due to production or business needs, the employer is entitled to temporarily assign the employee to perform tasks different from those specified in the labor contract. However, the total duration of such reassignment must not exceed anaggregate of 60 working days within a calendar year. If the reassignment exceeds 60 aggregated working days in total per year, it may only be carried out with the employee’s written consent.

The employer must specify in the internal labor regulations the specific cases related to production and business needs in which the employer is entitled to temporarily reassign the employee to perform work other than that stipulated in the labor contract.

Người sử dụng lao động quy định cụ thể trong nội quy lao động những trường hợp do nhu cầu sản xuất, kinh doanh mà người sử dụng lao động được tạm thời chuyển người lao động làm công việc khác so với hợp đồng lao động.

2. When temporarily assigning an employee to perform tasks different from those  stipulated in the labor contract as provided in Clause 1 of this Article, the employer must notify the employee at least 03 working days in advance, clearly state the duration of the temporary assignment, and assign work appropriate to the employee’s health and gender.”

Based on the above provisions, it can be seen that an employer may only reassign an employee to perform work different from that stipulated in the labor contract under the following circumstances:

• In the event of unforeseen difficulties caused by natural disasters, fire, or dangerous epidemics;
• For the implementation of measures to prevent or remedy occupational accidents, occupational diseases, or power and water supply incidents;
• In other cases related to production and business needs, as specifically provided for in the internal labor regulations.

In addition, when temporarily reassigning an employee to perform work different from that stipulated in the labor contract under the aforementioned circumstances, the employer must notify the employee at least 03 working days in advance, clearly specify the temporary duration, and assign work appropriate to the employee’s health and gender.

Thus, in Mr. Huy’s case, the company’s decision to transfer him from his position as a technical staff member at the production workshop to a loading and unloading worker, on the grounds of a temporary need until a replacement is found, does not comply with the law. In addition, the company failed to clearly specify the duration of the reassignment and did not provide prior notice to the employee as required. This is entirely inconsistent with the provisions of the Labor Code.

Second, how is unlawful reassignment of employees handled under the law?

Article 11.1 of Decree No. 12/2022/ND-CP on administrative penalties in the field of labor stipulates the penalties for violations related to the performance of labor contracts as follows:

“Article 11. Violations of regulations on the performance of labor contracts

1. A fine ranging from VND 1,000,000 to VND 3,000,000 shall be imposed on an employer who temporarily reassigns an employee to perform work different from that stipulated in the labor contract without giving the employee at least 03 working days’ prior notice, or fails to give notice, or fails to clearly specify the duration of the temporary assignment, or assigns work that is not suitable to the employee’s health or gender.”

Article 11.2 (c) of Decree No. 12/2022/ND-CP also provides that:

“2. A fine ranging from VND 3,000,000 to VND 7,000,000 shall be imposed on an employer who commits any of the following acts:

c) Reassigning an employee to perform work different from that stipulated in the labor contract without a lawful reason, beyond the permitted duration, or without the employee’s written consent as required by law.”

Based on the above provisions, if an employer reassigns an employee to perform work different from that stipulated in the labor contract without giving at least 03 working days’ prior notice or without clearly specifying the duration of the temporary assignment, the employer shall be subject to a fine ranging from VND 1,000,000 to VND 3,000,000.

In cases where the employer reassigns the employee without a lawful reason, the fine may range from VND 3,000,000 to VND 7,000,000.

In addition, Article 11.5 (c) of Decree No. 12/2022/ND-CP also provides the following remedial measures:

“5. Remedial measures

c) The employer shall be required to assign the employee to the position originally agreed upon in the labor contract if the employer has committed a violation as specified in Point c, Clause 2 of this Article.”

Third, what should the employee do to protect their lawful rights and interests?

Pursuant to Articles 5 and 15 of Decree No. 24/2018/ND-CP on the settlement of complaints and denunciations in the areas of labor, vocational education, sending Vietnamese workers abroad under contracts, employment, occupational safety, and hygiene, if there is a basis to believe that the employer has infringed upon their legal rights and interests, they have the right to file a first-time complaint with the employer. If t dissatisfied with the first complaint resolution, the employee may file a second-time complaint with the Chief Inspector of the Department of Labor, War Invalids and Social Affairs where the employer’s head office is located, or initiate a lawsuit at a competent People’s Court.

Thus, in this case, Mr. Huy was unlawfully reassigned by Company A, which adversely affected his lawful rights and interests. Therefore, to protect these rights and interests, Mr. Huy may lodge a complaint directly with the company’s management, requesting to be reinstated to the position originally agreed upon in the signed labor contract.

If the company fails to resolve the matter or provides an unsatisfactory resolution, Mr. Huy may file a second complaint with the Chief Inspector of the Department of Labor, War Invalids and Social Affairs where the company’s head office is located. Alternatively, he may initiate legal proceedings at a competent People’s Court.