Refusing to transfer a low-performing employee to another province

We're opening a brand-new store, and don't want to grant a transfer a low-performing worker

Brian Johnston
Question: One of our employees, who has been with the company 13 years, has requested a transfer to one of our retail stores in another province. We're opening a brand-new store there and have yet to hire any employees. This worker isn't an ideal employee, and we don't want to grant her the transfer to the new store.

Are we within our rights to say no? Or are we exposing ourselves to a lawsuit? What rights does an employee have to request a transfer and what rights does an employer have to say no? (We are not unionized, if that makes a difference.)

Answer: In the non-unionized context, an employer would only be obligated to grant a transfer if the terms of the employee's employment, as expressed in a written employment contract or implied as a result of past practice or an employer statement, contemplated such a transfer. Absent such a term, the employer is entitled to refuse the transfer and would have a strong defence to any lawsuit.

Due to the fluidity of the employment relationship, courts may imply terms into the employee's employment contract if there has been a statement to the employee or a past practice that has crystallized into a contract-like expectation.

Therefore, an employer should ensure that no statements have been made to the employee by a member of management that would give the employee reason to believe there was a right to transfer. If it is the employer's common practice to grant transfers to employees, then a court may imply such a term. However, even if such a term was implied, a court would likely find in the employer's favour as long as the employer could show that the employee was a poor performer and its practice was not to transfer poor performers.

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected].

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