Work Transfers in Panama: Rights and Limits

A transfer that implies an economic worsening, a serious impact on family life, or more onerous working conditions, without an objective cause, may constitute a violation of these principles. In such cases, the transfer may constitute an act of workplace hostility, contrary to the good faith that must exist in any employment relationship. When a transfer is used as a hidden punishment, due process is violated and the worker's legal security is weakened. However, in practice, the transfer has been used in some cases as a form of punishment, pressure, or retaliation, without respecting the guarantees that protect workers. In the public sector: The Law sets limits In the Panamanian public administration, the human resources action of transferring officials is, in principle, a legitimate organizational prerogative of the State, aimed at guaranteeing the efficiency, continuity, and proper functioning of public services. Although it is a power recognized by the public administration and private employers, it is not an absolute power and has clear limits when it affects the fundamental rights of the working population in Panama. What is a work transfer? A transfer consists of changing the worker's workplace, department, office, or functions. The Labor Code requires that every transfer: • Respond to the real needs of the company • Be duly justified • Not affect essential conditions such as salary, working hours, or labor category A transfer that causes economic harm, seriously affects family life, or imposes harsher conditions without justification, can be considered abusive and illegal. When does a transfer become retaliation? The Labor Code sets clear limits on business decisions that affect the worker. Furthermore, the Labor Code expressly protects trade union freedom and prohibits any act of retaliation for its exercise. Where can the affected worker turn? A private sector worker can present their case before the following instances: • The Ministry of Labor and Labor Development • The sectional labor courts There, they can request the nullity of the transfer, the restoration of their original conditions, or, in serious situations, the termination of the contract with the employer's liability. In conclusion, the transfer of workers in both the public and private spheres, when used as a retaliatory measure, constitutes a practice contrary to the principles of legality, good faith, and respect for fundamental labor rights. Therefore, it is essential that any decision to transfer be duly justified, proportional, and respond to the real needs of the service or the company. Knowing these rights is the first step to defending them! Within that power is the faculty to organize work, assign functions, and, in certain cases, order the transfer of the worker. A transfer can be illegal if it is used as punishment for: • Joining or participating in a union • Filing complaints with the Ministry of Labor • Claiming labor rights • Refusing to accept illegal conditions. In particular, it prohibits employer acts that imply harm, discrimination, or retaliation against the worker for exercising rights recognized by law. Labor justice must protect public servants. By Cinthya Patiño M. Attorney. For many workers, both in the public and private sectors, a work transfer can become a difficult, confusing, and in some cases, unjust experience. However, this power is not absolute and is limited by mandatory norms and protective principles for the worker. In the private sector, the employer has the power to organize work, but this power is not unlimited. The principle of job stability, the principle of unwaivable rights, and the principle of protection act as barriers against arbitrary decisions. The Labor Code expressly prohibits any act of discrimination or retaliation against the worker. However, in administrative practice, this figure has been used in certain cases as a mechanism for retaliation or as a disguised sanctioning measure, applied without respecting the guarantees of due administrative process. In the public sphere, the transfer is an administrative decision that implies a change in the public servant's place, department, or functions, which theoretically does not affect their essential labor condition. Panamanian jurisprudence has been clear: sanctions disguised as administrative decisions cannot be imposed. What can a public servant affected by this do? The public servant who considers their transfer to be unjust or arbitrary can: • Appeal before the Administrative Tribunal of the Public Function, without the need for a lawyer. • Sue before the administrative contentious jurisdiction, if they consider that the transfer lacks motivation, responds to illegitimate ends, or constitutes a disguised sanction. The Supreme Court of Justice has reiterated that administrative discretion is not synonymous with arbitrariness and that any act can be reviewed when it violates rights. In the private sector: limits to the employer's power Similarly, in the private sphere, a similar situation occurs, although the parties are different, that is, the labor relationship is characterized by a situation of legal subordination of the worker before the employer, which legitimizes the existence of the business power of direction. In accordance with Article 18 of the Political Constitution, public servants can only exercise the functions that the law attributes to them, which implies that any administrative action must be based on law, motivated, and oriented to the public interest. Law 9 of 1994, which regulates the Administrative Career, protects the stability of the public servant and makes it clear that disciplinary sanctions can only be applied through legal procedures. Theoretically, this measure seeks to improve the organization, efficiency, and continuity of the service or company. However, this power is not absolute.