Employment law
Ending a fixed-term contract for misconduct in Mali: one door only, gross misconduct
Kita Transit, a Bamako freight forwarder with 40 employees, hired a forklift driver on an eighteen-month fixed-term contract to absorb an exceptional cotton season. In the fifth month the driver runs into a stack of sacks and refuses to sign the incident report. The operations director wants to end the contract on the spot, "for serious misconduct".
Kita Transit is a fictitious company, as are the people named in this article: their names serve only as an example. The risk is entirely real, and it can be quantified today: if the characterisation does not hold, the company will owe the thirteen months of salary left to run. Two words separate those two outcomes.
1. What are we actually talking about?
First, a point of vocabulary, and not a decorative one: an employee on a fixed-term contract is not dismissed. Dismissal is how an open-ended contract ends. Under a fixed-term contract we speak of early termination, and its conditions are not the same.
The principle is irrevocability: the parties committed until a term, and that term binds them. The Code opens only narrow exceptions.
A fixed-term contract is not dismissed. It runs to its term, or it falls into one of the rare exceptions the Code provides.
2. Two articles, and they do not say quite the same thing
The Malian Labour Code deals with the question in two places, and both must be read.
| The article | What it allows |
|---|---|
| L.25 | A fixed-term contract may be ended before its term only in the event of gross misconduct, agreement of the parties recorded in writing or force majeure |
| L.39 | A fixed-term contract may be ended before its term by the will of one party only in the cases provided for in the contract, or in that of gross misconduct as assessed by the competent court |
The two articles overlap on the essentials, gross misconduct, but each adds an opening the other does not mention: written agreement and force majeure on one side (Labour Code, article L.25), the cases provided for in the contract on the other (Labour Code, article L.39).
In practice, prudence calls for relying only on grounds that both texts recognise, or for making sure the contract expressly provides for the case relied on. A termination based on a contractual clause the Code does not back remains exposed to the sanction of article L.25.
3. "Faute grave": a term that does not exist in the Malian Code
This is the commonest error, and it comes from a borrowing out of French law. The Malian Labour Code does not recognise serious misconduct (faute grave). It recognises gross misconduct (faute lourde), and nothing else.
It appears everywhere in the same position: as the highest threshold. It allows termination without notice (article L.41), it deprives the worker of severance pay (article L.53), it is the only disciplinary ground allowing a fixed-term contract to be ended early (articles L.25 and L.39), and it deprives the worker of the end-of-contract payment (article L.24).
| The degree | Does it exist in the Malian Code? | Effect on a fixed-term contract |
|---|---|---|
| Ordinary breach | Not named, but open to sanction under internal discipline | Does not allow early termination |
| "Faute grave" | No: the notion does not appear in the Malian Labour Code | None: the term carries no legal consequence |
| Faute lourde (gross misconduct) | Yes, used without being defined | The only degree permitting early termination |
Writing "faute grave" in a termination letter in Mali means using a word the Code does not recognise, to support a consequence that only another word produces. The Kita Transit operations director must therefore reword before writing anything. See Disciplinary procedures.
There is no gradation between faute grave and faute lourde in Mali. There is gross misconduct, or there is nothing.
4. The Code does not define gross misconduct
That is a real difficulty, and it is better faced squarely. The Code uses the notion without defining it and provides no list. Assessment rests with the competent court, case by case, articles L.39, L.41 and L.53 each say so expressly.
Two practical consequences follow.
- The same facts may be characterised differently depending on the circumstances. The worker's length of service, their disciplinary record, any intent to harm, the context of the incident, the harm caused and the level of responsibility of the post all enter into the assessment.
- The characterisation does not belong to the employer. The employer proposes it; the judge confirms or rejects it. That uncertainty is the main risk of this route, and it is not reduced by better drafting: it is reduced by better evidence.
5. The burden of proof lies with you
In the event of a dispute, it is for the employer to prove that a legitimate ground existed, and termination is wrongful in particular where the stated reason is inaccurate (Labour Code, article L.51).
The worker does not have to show that they did not commit the misconduct. That rule translates very concretely: the file is built before termination, never after.
Dated and detailed facts, signed written statements, correspondence, physical evidence, disciplinary record: anything that does not exist at the moment the decision is taken will be hard to produce later, and a statement taken six months after the incident is not worth one written the same day.
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6. What procedure should be followed?
The Code imposes no detailed disciplinary procedure for ending a fixed-term contract, and requires no prior notification to the labour inspector, unlike the termination of an open-ended contract, where an employer wishing to dismiss must inform the competent labour inspector by registered letter (article L.40).
But the applicable collective agreement or the company's internal rules may provide for one, and it must then be followed to the letter.
A procedure that circulates, and does not come from the Malian Code
Many templates contain a precise sequence: a summons to a prior meeting, the employee assisted by a colleague, a two-working-day gap between summons and meeting, notification within the month. None of these features in the Malian Labour Code for the termination of a fixed-term contract.
The Code provides for the worker to be assisted by a staff delegate or another employee in one specific and different case only: the meeting preceding a negotiated termination, an alternative to resignation and dismissal open only to open-ended contracts (Labour Code, article L.50 bis).
These steps remain good practice, and they are strongly advised, not because a text requires them, but because they are exactly what will make the misconduct provable before a court.
| The step | Why it matters |
|---|---|
| React promptly after discovering the facts | A long delay undercuts the idea that keeping the worker was impossible |
| Summon the worker in writing, stating purpose, date, time and place | Establishes that they were given the opportunity to explain themselves |
| Hold the meeting and keep a written record | Captures their version before the decision, not after |
| Allow a period of reflection before deciding | Shows the decision was not impulsive |
| Notify the termination in writing, with precise reasons | The written reasons frame the dispute: they cannot be added to later |
While the facts are being examined, the employer may impose a temporary lay-off, which suspends the contract for no more than eight days (Labour Code, article L.34), and without pay (article L.38). It is the precautionary measure that allows the worker to be set aside without prejudging the final decision.
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7. What a characterisation that fails costs
The gap between the two outcomes is considerable, and it can be calculated before deciding.
An employer's disregard of the prohibition on ending the contract early entitles the worker to damages equal to the remuneration they would have received until the end of the contract (Labour Code, article L.25).
Example. The Kita Transit forklift driver is on an eighteen-month fixed-term contract at XOF 300,000 gross per month. The company terminates in the fifth month. Thirteen months remain to run.
| The outcome | What the company owes | The amount |
|---|---|---|
| Gross misconduct is upheld | The final salary balance and compensation for accrued paid leave. The end-of-contract payment is not due (L.24) | The final settlement, with no damages |
| Gross misconduct is not upheld | Damages equal to the remuneration left to run until the term (L.25) | 300,000 × 13 months = XOF 3,900,000 |
Three million nine hundred thousand francs, for a file built on the day of the incident or reconstructed six months later before the court. Between those two columns lies a single difference: the quality of the file assembled before the decision.
The end-of-contract payment: where the 2.5% rate comes from
Where the contractual relationship does not continue at the end of a fixed-term contract, the worker is entitled, as supplementary pay, to a payment compensating the precariousness of their situation. The rate is set by collective agreement; failing that, the minimum rate is set by decree (Labour Code, article L.24).
That decree exists: absent any rate set by collective agreement, the minimum end-of-contract payment equals 2.5% of the total gross remuneration received by the worker over the duration of the contract, and it is added to the last month's salary (Decree No. 96-178/P-RM of 13 June 1996, article D.24-1, as amended by Decree No. 2022-0125/PT-RM of 4 March 2022).
On the Kita Transit contract run to its term, the calculation would be: 300,000 × 18 months = XOF 5,400,000 in total gross remuneration, of which 2.5% is XOF 135,000.
That payment is not due in three sets of cases: for the workers covered by points 1, 2, 4 and 5 of article L.20 (engagement by the hour or the day for work not exceeding a day, seasonal workers, temporary replacement, sectors of established practice); where the worker refuses an open-ended contract for a similar job at a wage at least equal; and where the early termination is due to the worker's initiative or their gross misconduct (Labour Code, article L.24).
8. Three signals that should stop you
- The facts are old. A late reaction contradicts the idea that keeping the worker was impossible, which is the very core of gross misconduct.
- The evidence rests on oral statements. Without signed writing the demonstration will be fragile, and it is you who carry the burden of proof.
- The complaint concerns quality of work rather than a defined breach. Underperformance is not gross misconduct, and it does not become so by being repeated.
In those three cases, two alternatives remain. A proportionate disciplinary sanction if the contract is to continue, disciplinary power applies during a fixed-term contract as it does during an open-ended one. Or an agreement of the parties recorded in writing if both sides want the separation, expressly provided for by article L.25.
That second route almost always costs less than a misconduct termination that fails to be upheld. And it has a merit the first does not: it closes the file instead of opening it.
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Key takeaways in 6 points
- Never speak of dismissal for a fixed-term contract: it is early termination, and its conditions are stricter.
- Rely only on gross misconduct: "faute grave" does not exist in the Malian Labour Code.
- Build the file before termination, around dated facts and statements written the same day.
- Follow the procedure in the collective agreement or internal rules if one exists, and an adversarial process in every case.
- Quantify the risk before deciding: the months left to run multiplied by the gross monthly remuneration.
- Prefer a written termination agreement where the file is weak: it is provided for by article L.25 and it closes the dispute.