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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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I am a senior executive and my company will relocate my position

Customer Question

I am a senior executive and my company will relocate my position "some time" in 2013 to Belgium (they have been vague, at times broadly referring to July 2013). I currently live and am employed in the State of California (Long Beach), we do not have employment contracts at the company. I have a green card (and am originally from Australia) and have been with the company for 10 years. I do not want to relocate to Belgium and have said this to them. Instead I said I would leave the company and relocate to my home country (Australia). I have told them I am looking for a job over in Australia (so as to be helpful for them to start working on a replacement) but want to stay at least till the end of the year. They have quickly identified someone for my role in Belgium (much quicker than I expected) and want to put him in the role now and announce it. They have offered to put me on special projects through the end of the year and then relocate me. However I will miss out on my bonus and normally when someone is redundant they get 12 weeks pay + 2 weeks per year of service (which is worth more than the relocation).
I feel I am entitled to redundancy if they appoint someone now prior to me officially leaving.
My question is do you think I am entitled to the redundancy package?
Does my saying to them that I don't want to go to Brussels but instead want return to Australia give them the right to appoint someone while I am in the role?
If they appoint the person now, can I say I want the redundancy now and thus not work through the end of the year on the special projects?
Thank you
Submitted: 5 years ago.
Category: California Employment Law
Expert:  DrewMSJD replied 5 years ago.

DrewMSJD :

Have you offered to take the redundancy package? If they've offered to put you on special projects, maybe there is some room to negotiate a separation that works you you and them. It doesn't sound like you'd be "redundant" if they are putting you on "special projects." You'd only be redundant if the two of you were in Brussels. I could be wrong (would need to study your company policy before I could comment intelligently on that), but for now, it sounds like taking what they give you and negotiating a fair separation package may be a good approach. Does that help?

DrewMSJD :

It looks like you're offline, so I'll switch to the Q & A format. You can reply to me from there if you want to follow-up.

Expert:  DrewMSJD replied 5 years ago.
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Customer: replied 5 years ago.

Hi . I thought that when you were employed in a role eg. Head of Finance, if they then appoint someone into that exact role, this would be a forced retrenchment of the incumbent, or at a minimum it is illegal as they would need to terminate me first for cause etc (which given my exceptional performance would not be warranted)?

In addition by virtue of the fact they have moved my position to another country I thought the way employment law worked is that if my role moves they can't force me to move thus again they should offer a redundancy package.

Also just to be clear they haven't offered a "redundancy package", they've offered just to relocate me, that's all. that's the offer. I'm trying to understand my legal rights as to whether I can force them to give me one of their standard redundancy packages becuase they have put someone else in my role (I dont really want to negotiate but rather to know that it is my right?) Thank you

Expert:  DrewMSJD replied 5 years ago.
To be honest, I'd need to research the theory you're describing to answer with the level of specificity you're looking for, but it sounds like you need an attorney with California (executive) employment law experience. Sure, it will cost you a bit, but having an attorney should pay in the end given what's at stake for you.

What I can say is that it can be hard to prove "redundancy" of your position if they are offering you another position at the same (or higher) rate of pay. That said, a claim a constructive termination may have merit, particularly since they hired a replacement. However, an unwillingness to relocate, may be justification for them to find someone else to take that particular job. Whether or not you have a good legal case, I'd recommend finding a local attorney to make sure all of your rights are protected moving forward. I hope that helps. If so, it would be great if you accepted my answer so I can get credit.

In any case, I will Opt Out of this question so another expert can jump in - hopefully with the information you're looking for. Good Luck!
Expert:  Joseph replied 5 years ago.
Hello and welcome to JustAnswer.

I'm sorry to hear aobut your situation and hope I can help.

Unfortunately, as an at-will employee, you are not entitled to a redundancy package if you were to leave your employer. Unless you have a contract that states otherwise, your employer is free to terminate your employment at any time for any reason with or without prior notice.

This stems from the employment at-will doctrine, which is codified in Labor Code Section 2922, which states:

"An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."

Since you informed them that you would not be going to Brussels, that does give the employer the right to find someone else to fill the position.

Finally, you could request the redundancy package instead of working through the end of the year, but as I stated above, unless you have a contract that states othwerwise, your employer wouldn't be obligated to provide you with a redundancy package.

I wish I could have provided you with better news, but I hope you appreciate a direct and honest answer to your question.
Joseph, Lawyer
Satisfied Customers: 5299
Experience: Extensive experience representing employees and management
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