Employment law
The unwritten or unsigned fixed-term contract
A fixed-term contract must be recorded in writing. Failing that, the law presumes it to have been concluded for an indefinite period: an employer who thought it could part with the employee on the agreed end date finds itself bound by an open-ended contract, with all the termination rules that go with it.
This formal requirement is the gateway to a broader regime: mandatory particulars, maximum duration, number of renewals, filing with the labour inspectorate. A well-drafted fixed-term contract that is poorly managed carries the same risks as one that was never written. Labour Code, Article L.21 — French.
1. Why is a written contract essential?
As a rule, an employment contract may take whatever form the parties choose, and its existence may be proved by any means. The fixed-term contract is an exception: it must be recorded in writing. Without a written document, it is presumed to have been concluded for an indefinite period.
The logic is simple: a fixed-term contract departs from the ordinary open-ended contract, and the written document is what proves that the parties intended an end date. Without it, the law applies the outcome most protective of the employee.
The text speaks of a presumption without saying whether the employer may rebut it. In practice, an employer with no written document to produce is in a very weak position to show that an end date had been agreed.
Example. A company hires a technician "for six months" on a purely verbal agreement. After six months, it ends the relationship. Since the contract is presumed open-ended, ending it amounts to a dismissal: notice, grounds, notification of the labour inspector and, where applicable, damages. Labour Code, Articles L.15, L.21 and L.40 — French.
2. Does an unsigned fixed-term contract count as written?
The Code requires a written document without defining it, and Malian legislation does not specifically address signature. But a document that one party has not signed is weak evidence of that party's consent, particularly to the end date.
The risk is therefore real: a fixed-term contract not signed by the employee may be treated as unwritten and fall under the presumption of indefinite duration. Two precautions are essential:
- have the contract signed before the first working day, not after several weeks of work;
- if the employee refuses to sign, keep evidence that the contract was handed over and refused, for example a letter delivered against a receipt or a witness, and do not let the employee start work without a signed contract.
The same caution applies to each renewal: the Code does not say so expressly, but a renewal that is not in writing raises the same evidential difficulty as the initial contract. Labour Code, Article L.21 — French.
3. What must the contract contain?
For fixed-term contracts concluded in the cases listed in Article L.20, the implementing decree requires a precise definition of their purpose and the following particulars:
| Situation | Mandatory particular |
|---|---|
| Replacement of an employee whose contract is legally suspended | Name and qualification of the employee being replaced |
| Contract with a precise end date | The end date and, where applicable, a clause allowing the end date to be postponed |
| Contract without a precise end date | The minimum period for which it is concluded |
| In all cases | The job or position held |
| Where a probationary period is provided for | Its length |
The decree therefore expressly allows a fixed-term contract to include a probationary period. It does not state the consequence of a missing particular; the presumption of indefinite duration only covers the absence of a written document. A missing particular nonetheless weakens the contract, especially where it concerns the end date. Decree No. 96-178/P-RM, Article D.20-1.
4. What other rules govern fixed-term contracts?
A fixed-term contract is one whose duration is set in advance. Two other contracts are treated in the same way: a contract for a specific piece of work whose duration cannot be accurately assessed, and a contract whose end depends on a future and certain event whose date is not exactly known.
| Rule | Content | Sanction or consequence |
|---|---|---|
| Maximum duration | Two years; a contract for a specific piece of work is not subject to this cap, but may not be renewed | The contract no longer meets the definition of a fixed-term contract |
| Renewals | No more than two with the same company; the initial contract does not count | Continued service beyond that is an open-ended contract by operation of law |
| Permanent job | A fixed-term contract may not be used to fill on a lasting basis a job linked to the company's normal and permanent activity | Fine |
| After a redundancy | No fixed-term contract for six months on abolished posts, unless it lasts three months or less and is not renewable | Fine |
| Filing | A fixed-term contract of more than three months is filed with the local labour inspectorate before work begins | Fine |
The two-renewal limit does not apply to five categories of workers:
- workers hired by the hour or by the day for work not exceeding one day;
- seasonal workers hired for an agricultural, commercial, industrial or craft season;
- workers hired as additional staff to handle an increase in activity;
- workers temporarily replacing an employee whose contract is legally suspended;
- workers in a sector where open-ended contracts are customarily not used, as listed by ministerial order.
Breaches of Articles L.20 to L.23 are punishable by a fine of CFA F 10,000 to 50,000, rising to CFA F 20,000 to 100,000 for a repeat offence. Labour Code, Articles L.18 to L.23 and L.316 — French.
5. Filing or approval: what is the difference?
The two formalities are often confused, although they differ in scope and effect.
| Formality | Contracts concerned | Effect of failure |
|---|---|---|
| Filing with the labour inspectorate | Any fixed-term contract of more than three months | Fine; the text does not provide for reclassification |
| Filing for an opinion | Contract requiring the worker to settle outside the locality of residence | Mandatory prior formality, after a medical examination |
| Approval (visa) by the National Labour Directorate | Contract of a foreign worker, accompanied by a work permit | The worker may have the contract declared void and claim damages, with repatriation paid by the employer |
A fixed-term contract that has not been filed or approved is therefore not, for that reason alone, turned into an open-ended contract. Note also that, during the first two years of permanent residence in Mali, a foreign national may only work under a fixed-term contract, unless a reciprocity agreement provides otherwise. See Expatriate contract. Labour Code, Articles L.21, L.26 and L.29 — French.
6. What happens at the end of the contract, or on early termination?
Where the relationship does not continue after the fixed-term contract, the employee is entitled to an end-of-contract (precariousness) allowance, calculated on the total gross pay due during the contract. Failing a collective agreement, the minimum rate is set by decree at 2.5%.
The allowance is not due:
- for workers hired by the hour or by the day, seasonal workers, replacement workers and workers in customary sectors;
- if the employee refuses an open-ended contract for the same or a similar job, at a salary at least equal;
- on early termination at the employee's initiative or for gross misconduct.
Before its end date, a fixed-term contract may only be terminated for gross misconduct, by written agreement between the parties or for force majeure. Otherwise, the employer owes damages equal to the pay the employee would have received up to the end date.
Worked example. An employee on a twelve-month fixed-term contract paid CFA F 200,000 a month is not kept on at the end: the minimum end-of-contract allowance is 2,400,000 × 2.5% = CFA F 60,000. Had the employer dismissed him without valid grounds five months before the end date, it would have owed CFA F 1,000,000 in damages. Labour Code, Articles L.24 and L.25 — French; Decree No. 96-178/P-RM, Article D.24-1.
7. Who decides in a dispute?
The employee or the employer may first ask the labour inspector to settle the dispute amicably. This step suspends the limitation period until the minutes closing the conciliation attempt.
Failing agreement, the labour court rules, and only the court can find that the contract must be treated as open-ended. The labour inspector conciliates; the inspector does not reclassify contracts. Labour Code, Articles L.190 to L.192 — French.
Key takeaways
| The rule | What it implies |
|---|---|
| A fixed-term contract must be in writing | Otherwise it is presumed open-ended |
| An unsigned contract is weak evidence of consent | Have it signed before the first day, renewals included |
| Mandatory particulars under the decree | Purpose, end date or minimum period, position, person replaced, probation |
| Two years maximum, two renewals maximum | Beyond the permitted renewals, open-ended by operation of law |
| Filing with the inspectorate for any contract over three months | Before work begins; not to be confused with approval (visa) |
| End-of-contract allowance of at least 2.5% | Subject to the exceptions in the Code |
| Early termination limited to three cases | Otherwise, pay due up to the end date |
| The inspector conciliates, the court decides | Reclassification is for the labour court |