Legal nature of definition of the concept of employee’s reassignment

Abstract

In this article authors analyze theoretical approaches to definition of such concepts as: “reassignment”, “other work”, “workplace”, the practical importance of which is a need to obtain the employee’s consent in case of his/her removal.

In a country with market economy the reassignment has both positive and negative consequences for employee, since under declarative equality of the labour relations subjects – employer and employee – the employee is more sensitive subject of labour relations in comparison with the employer. Correspondingly, the scientific research of legal nature of reassignment of the employees is quite topical at present. This is especially important in the context of constitutional provisions under part 3 of article 22 of the Constitution of Ukraine, according to which there should not take place diminishing of the content and scope of existing rights and freedoms during adoption of new laws or amending existing laws.

In this article authors also analyze points of view of different scientists, some of which understand removal as a change of employee’s labour function and workplace, others as a change of work function determined by the agreement between its parties.

It is concluded that a term of workplace they understand in two aspects: territorial and institutional. Under territorial aspect workplace is regarded as being in a particular location, in the employer’s territory. Under institutional aspect workplace is identified with the organization-employer and its structural units. It is noted that court practice recognizes workplace as structural units under the institutional and legal aspect without considering their presence in a particular area and the terrain.

The authors substantiate the expediency of the distinction between “reassignment” when it means only changing the employee’s work function, and the “employee’s removal to another enterprise, institution or organization” (to another employer) when it means changing the parties of the labour agreement (the labour agreement with one employer is terminated and new labour agreement is concluded with another employer), and “employee’s removal to another location together with the enterprise, institution or organization” when it means changing the place of execution of work function by the employee (for example, in another inhabited settlement).