Employment law
Wrongful poaching: when hiring an employee makes you liable for their departure
An experienced truck mechanic turns up on a Thursday, available from Monday. He has just left a rival haulier, or rather stopped going there, with no letter and no notice. Hiring him at once looks like a stroke of luck. But if his former employer claims compensation, you may end up paying alongside him.
Our fictional running case: Baobab Logistique, a road haulage company in Bamako with 80 employees, urgently looking for a mechanic.
1. What exactly are we talking about?
Wrongful poaching means hiring an employee who has wrongfully ended their previous contract. In certain cases, the new employer becomes jointly liable for the loss suffered by the former one. Being jointly liable means you can be ordered to pay the full compensation, alongside the employee. Labour Code, article L.56
This rule protects the employer who trained and relied on an employee: it prevents a competitor from benefiting from an abrupt departure it caused or knowingly accepted.
What is wrongful termination by the employee?
An employee on an open-ended contract may resign at any time, but must notify the decision in writing and work a notice period. The employer may never presume a resignation. Labour Code, article L.40 Statutory notice, absent a collective agreement, is 8 days for staff paid by the day or week, 1 month for monthly staff, 2 months for supervisors and 3 months for managers.
An employee who leaves without notice owes the employer compensation equal to the pay for the notice not worked. Labour Code, article L.42 On a fixed-term contract, leaving before the term is allowed only for gross misconduct, written agreement or force majeure. For details, see Resignation.
An employee who stops turning up is not a free employee. Until the contract is settled, they are still bound.
2. The three cases where the new employer is liable
| Case set by the Code | What it covers at Baobab Logistique |
|---|---|
| 1. It is shown that the new employer took part in the poaching | The workshop manager promised the mechanic a bonus if he left his job without waiting |
| 2. It hired an employee it knew was already bound by an employment contract | At interview, the mechanic said he was "still under contract with the other firm" |
| 3. It kept employing him after learning he was still bound to another employer | A month after hiring, the former employer writes to Baobab Logistique, which does nothing |
The most common mistake
Believing you are safe because you knew nothing at the time of hiring. The third case targets the employer informed afterwards who keeps the employee. Filing away the former employer's letter is enough to trigger liability.
Conversely, in the second case the Code refers only to what the employer knew. Wording such as "knew or should have known" circulates, but does not appear in the Malian text.
What you need to do
- Forbid your recruiters from making any promise conditional on leaving without notice.
- Deal immediately with any letter from a former employer reporting an ongoing contract.
3. The time limit that ends the risk, and only in the third case
In the third case, the new employer's liability ends if, when it was informed, the wrongfully terminated contract had already run its course:
- for a fixed-term contract, because its term had been reached;
- for an open-ended contract, because the notice period had expired;
- or because fifteen days had passed since the termination.
The reasoning that does not hold
"After fifteen days, there is no more risk." Wrong for the first two cases. If Baobab Logistique took part in the departure, or knew the mechanic was still bound, the fifteen-day period does not protect it. It only helps the employer acting in good faith who was informed late.
What wrongful poaching costs
Example. The mechanic, on an open-ended contract paid monthly XOF 250,000, left without notice. Baobab Logistique knew he was still bound. His former employer claims the notice payment and damages for delayed repairs, which the court sets, for the sake of the example, at XOF 500,000, based on the loss referred to in article L.51.
Payment for notice not worked: 1 month, i.e. XOF 250,000 Damages set by the court (assumption): XOF 500,000 Total claimable, in whole or in part, from Baobab Logistique: 250,000 + 500,000 = XOF 750,000
Damages are not a fixed amount: the court sets them according to the loss actually suffered by the former employer.
What you need to do
- When in doubt, move the start date beyond the end of notice or fifteen days after the termination.
- If you are informed after hiring, check the situation at once and act on it.
4. Checks to run before hiring
| Question | How to answer it |
|---|---|
| Is the candidate still bound by a contract? | Ask in writing and keep the answer |
| How did their contract end? | Written resignation, dismissal, end of fixed term, termination by agreement |
| Was notice worked or paid? | Ask for the certificate of employment, which shows the leaving date |
| How long ago did the termination occur? | Compare the leaving date with the planned start date |
| Is there a non-competition clause? | Ask for the previous contract or a written statement |
The certificate of employment is the key document. The former employer must hand it over on departure, failing which it owes damages. It states the start date, leaving date, jobs held and occupational category. It may carry the words "free of all commitments". Labour Code, article L.61
A candidate who cannot produce this certificate is not necessarily at fault: the employer may have been slow. But the question deserves to be asked and the answer kept.
What you need to do
- Require the certificate of employment, or failing that a statement of contract end, before signing.
- Keep these documents in the employee's file.
5. A useful statement in the offer letter
Have the candidate sign, in the offer letter or the contract, a statement confirming:
- that they are no longer bound by any employment contract;
- that their previous contract ended properly, on a date they specify;
- that they are subject to no non-competition clause in force, or they set out its terms.
This statement proves your diligence and good faith. It does not protect you if you took part in the departure or if you actually knew the candidate was still bound.
6. Not to be confused with the non-competition clause
As a rule, any clause banning the employee from working after the contract ends is void. The Code allows a single, tightly framed exception. Labour Code, article L.17
| Wrongful poaching | Non-competition clause | |
|---|---|---|
| Source | The law | A clause agreed between the parties |
| What is at issue | An irregular departure from the previous job | A competing activity after departure |
| Who is liable | The new employer, jointly with the employee | The employee |
| Conditions and limits | Three cases; in the third, the risk ends once the contract or notice has expired, or after fifteen days | Termination by the employee or dismissal for gross misconduct; 6 months maximum; 15 km around the workplace |
For more on the second mechanism, see Non-competition clause.
A closer look: apprentices and trainees
The Code provides a specific criminal penalty: an employer who knowingly hires or keeps a worker still bound by an apprenticeship contract, or a trainee still in training at a vocational training centre, faces a fine of XOF 50,000 to 300,000 and imprisonment of one to six months, or either penalty. Civil compensation for the injured party comes on top (article L.318).
Key takeaways in 6 points
- Check that a candidate is no longer bound by a contract before hiring.
- Require the certificate of employment, which proves the leaving date.
- Never take part in the departure of another employer's employee.
- React immediately if a former employer reports an ongoing contract.
- Rely on the fifteen-day period only if you were in good faith at the time of hiring.
- Have the candidate sign a statement on their contractual situation.