Employment Contract: Negotiate Your Mobility Clause
8 October 2009
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Married and a parent, your employer tells you that you will be transferred to the Taza region for service needs... Mobility, the terms of which are included in the employment contract, may not have received all your attention at the time of signing your commitment. Mistake...
The mobility clause affects the place of work, one of the substantial elements of the contract, according to experts. It deals with the possibility of a change in the employee's place of work who expressly and in advance accepts a new geographical assignment. In network activities (banking, insurance, Post Office, hotels, telecoms) and in general, in groups deployed in several regions, or even countries, the mobility clause stated in the contract is critical. According to the needs of the company, the employer can transfer the employee to another establishment without the employee being able to oppose it. A possible refusal could be equated to a unilateral breach of contract and therefore could result in dismissal for serious misconduct. The importance of the mobility clause varies depending on the size of the company. In a relatively large structure or belonging to a group or holding company", this point becomes critical because mobility is a lever for managing human resources, explains Me Amin Hajji, Managing Director of the Hajji & Associés firm. But be careful, it is not mandatory. Even if, in an interview, the employer naturally adopts a strong position, "nothing obliges the future employee to accept such a clause", tempers the lawyer.
2- Transfer or the door?
A contract implies a negotiation between two parties, who must find common ground with a view to a partnership where everyone wins. This clause must be clear and concise. It is quite possible, even legitimate, to expressly specify "the geographical limitation of a possible change of workplace, or even to refuse it", observes Me Amin Hajji.
As for the employer, he must be able to "anticipate the possibilities of movement, and take into account the family situation of the person concerned". But once the contract is signed, its clauses are incontestable, as stipulated in Article 21, paragraph 1 of the Labour Code: "The employee is subject to the employer's authority within the framework of legislative or regulatory provisions, the employment contract, the collective bargaining agreement or the internal regulations". Honest and transparent communication will avoid getting bogged down later in legal disputes.
Does an employee who refuses a transfer commit gross misconduct? The answer is clearly yes. The employer is fully entitled to dismiss him, if we refer to the provisions of Article 39 of the Labour Code: "Are considered as serious misconduct that can lead to the dismissal of the employee (...), the deliberate and unjustified refusal to perform work within his competence". Of course, the employer must be able to prove the validity of the transfer decision before the judge. If there is no "valid" reason, it will then be a case of "punitive transfer", a way of getting the "parasite" employee to resign rather than having to dismiss him. A still common practice because a dismissal, when it is not genuinely justified, can cost the employer dearly.
Before hiding a possible dispute with your employer, the mobility clause is above all a mechanism for managing human resources in an organization. Many organizations use it as a lever in internal promotion policies. This is the case of the Accor hotel group which, as its HR director, Tijania Birouk-Thepegnier, explains to us, includes the transfer in a "logic of learning and promotion". The musical chairs game is above all a way to use the social elevator within the hotel chain. And there are bridges between all the brands of the group. For each new opening of a unit, Accor Morocco draws a third of its workforce from the internal pool, including for management positions. For example, a director of an Ibis hotel can be promoted to responsibilities in a Sofitel unit, for example.
The example of a hotel group is very significant, because its employees are often required to change their place of work, from the moment its establishments cover a large part of the territory. In this case, the mobility clause constitutes an "obligation in each contract", but in the event that such a decision must be taken with regard to an employee, "it is done on a case-by-case basis". His refusal does not constitute grounds for dismissal because the company's HR policy incorporates mobility into the "career plan logic" of its employees. In reality, those who refuse to "go there" penalize themselves because mobility can only be beneficial for their development.
Teachers do not have the same approach. The mobility of personnel in National Education has been a burning issue for decades, to the point that unions have taken over the management of mobility within the Mammoth. In most cases, the change of workplace is a matter of bargaining where union combinations and rivalries are intertwined. This has the effect of removing mobility's role in managing skills in this administration. No minister has dared to challenge union practices on transfers.
L'Economiste February 29, 2008
