Resignation is never presumed

On Monday, the guard at the north gate does not take over his shift. Nor on Tuesday. After three weeks, his phone rings unanswered and the post supervisor suggests "removing him from the headcount". It is tempting to treat him as having resigned. Yet that is the decision that turns an absence into a wrongful dismissal, at the company’s expense.

Our fictional running case: Sahel Sécurité, a security company in Bamako with 120 guards. One of them, Moussa, has not come to work for three weeks.

1. What exactly are we talking about?

Resignation is the termination of an open-ended contract at the employee’s initiative. The Code requires an employee who resigns to notify the decision in writing to the employer, and forbids the employer from presuming a resignation. To presume is to draw a conclusion from behaviour the person has not expressed. Labour Code, article L.40

This rule protects the employee: nobody loses their job, or their termination payments, on the basis of the employer’s interpretation. As long as Moussa has written nothing, he has not resigned.

No letter, no resignation. An absence remains an absence.

2. What never amounts to resignation

Situation	Why it is not a resignation
Absence, even a long one	It may have many causes: illness, accident, police custody, family emergency
The employee’s silence	Saying nothing is not notifying a decision in writing
Words spoken in anger	"I’m leaving" said in an argument is not a written notification
Refusing a substantial change to the contract	If the employer then terminates, the termination is attributable to it and follows the dismissal procedure
Failing to return after leave	As long as the cause is unknown, no conclusion can be drawn

A change is substantial when it concerns an element without which the employee would not have signed: salary, working conditions, place of work, job. Labour Code, article L.58

The most common mistake

Stopping pay, withdrawing the badge and hiring a replacement, treating the file as closed. Not paying for days not worked is allowed: no salary is due for an absence not provided for by the texts (article L.101). But treating the contract as terminated without a procedure amounts to dismissing without grounds or formalities.

What you need to do

• Never write "resignation" in a file without a letter signed by the employee.
• Keep treating the absent employee as a member of staff until the procedure is complete.

3. What a presumed resignation costs

If the employee challenges it, the court finds a termination at the employer’s initiative, with no letter, no ground and no notice to the labour inspector. In a dispute, the employer must prove a legitimate ground. A dismissal without a legitimate ground is wrongful and gives rise to damages. Labour Code, article L.51

These damages come on top of the notice payment and severance pay. Severance pay is due after one year of continuous service and is calculated on the monthly average of the last twelve months. Labour Code, article L.53

Example. Moussa is paid monthly XOF 150,000 gross and has 4 years’ seniority. Sahel Sécurité removed him from the headcount without any procedure.

Notice payment (1 month, absent a collective agreement): XOF 150,000
Severance pay: 150,000 × 20% × 4 = XOF 120,000
Subtotal: 150,000 + 120,000 = XOF 270,000
To be added: damages set by the court, and a criminal fine of XOF 10,000 to 50,000 for breaching article L.40 (article L.316)

Another consequence: when the employee takes the ground to court, the appeal suspends the employer’s decision (article L.40). By trying to avoid a procedure, the company puts itself in the worst position.

4. The correct procedure, step by step

Step 1: record the absence and look for the cause

Record the absences in the payment register, which must keep an account of absences by cause (article L.107). Then check whether a statutory suspension applies: illness, accident, police custody. An absence covered by a suspension is not misconduct.

Step 2: send a formal written notice

Send the employee a registered letter, or one handed over against a receipt, asking them to justify the absence or return to work within a set time, and stating that otherwise a dismissal procedure will begin. The Code does not require this letter, but it proves the company looked for the cause before acting.

Step 3: notify the dismissal

If there is no response, notify the dismissal in writing, stating the ground. Notice runs from the date this notification is handed over. Labour Code, article L.41 Inform the labour inspector by registered letter, with details of the employee, the employer and the ground. The inspector has fifteen days to give an opinion.

If the employee is a staff delegate, the labour inspector’s prior authorisation is mandatory: without it, the dismissal is void (article L.277).

Step 4: settle the accounts

Pay the accrued leave compensation (article L.162) and issue the certificate of employment (article L.61). Keep them available if the employee remains unreachable.

The step imported from French law

Many templates include a summons to a "preliminary interview". This formality comes from French law: the Malian Code does not require it. Hearing the employee remains good practice, but the written, reasoned notification and the notice to the inspector are what the law requires.

What you need to do

• Send a dated formal notice with a precise deadline for response.
• Notify the dismissal in writing with its ground, then inform the labour inspector by registered letter.
• Check first whether the employee is a staff delegate.

5. The ground to write

The ground is never "resignation": the word has no place in a dismissal letter. The ground is persistent unjustified absence despite formal notice, with dates and documents: copy of the letter, proof of receipt, attendance record.

A dismissal that is justified but notified without writing or without a ground exposes the employer to compensation of up to one month’s gross salary (article L.52). Withholding notice and severance pay is possible only for gross misconduct, the most serious misconduct recognised by the Code, whose existence is assessed by the court. A prolonged absence is not automatically gross misconduct.

What you need to do

• Draft a factual, dated ground backed by documents.
• Only label the absence gross misconduct after weighing the risk of the court disagreeing.

6. Prevent rather than suffer

Internal rules, mandatory in industrial, commercial and agricultural businesses with at least ten employees, may set disciplinary rules: whom to inform of an unplanned absence, by what means, before what time. These rules do not turn an absence into a resignation, but they make the breach easy to establish (articles L.62 and L.64).

When employer and employee both want to end the contract, the appropriate route is termination by agreement: a written protocol, freely signed, with compensation at least equal to statutory severance pay, a copy of which is sent to the labour inspectorate (article L.50 bis). For the general rules, see Resignation.

A closer look: domestic staff

For domestic staff only, Decree No. 96-178/P-RM of 13 June 1996 (article D.86-24) sets a specific rule: unauthorised absences must be justified within three days, and two unauthorised and unjustified absences in the same month amount to abandonment of work, allowing termination without notice or severance pay. This rule does not apply to other employees.

Key takeaways in 6 points

1. Recognise a resignation only on the basis of a letter from the employee.
2. Stop paying for days of unjustified absence, without treating the contract as terminated.
3. Check that no statutory suspension covers the absence.
4. Give the employee written notice to justify the absence or return to work.
5. Dismiss by written, reasoned notification, then inform the labour inspector.
6. State persistent unjustified absence as the ground, never resignation.