Employment law
Serious or gross misconduct? Driving without a valid licence
A gendarmerie check on the Sikasso road reveals that the truck driver has been driving for a month on a suspended licence. The vehicle is impounded, the delivery arrives two days late and the customer threatens to cancel. The director wants to dismiss on the spot, pay nothing, and make the driver repay the losses. On both points, the Labour Code sets precise limits.
Our fictional running case: Trans-Niger Fret, a road haulier in Bamako with 55 employees, including 30 drivers. The driver concerned, Adama, earns XOF 180,000 per month and has 3 years' seniority.
1. Two questions not to be confused
The case raises two separate questions. First: how to end the contract, and at what cost? Second: who bears the losses: fine, impoundment, lost customer? The answers rest on different rules.
The label decides the notice. It does not, on its own, decide who pays for the damage.
2. Ending the contract: the two routes in the Malian Code
The Malian Code does not recognise the "serious misconduct" (faute grave) of French law. It distinguishes dismissal on a legitimate ground, which carries notice and severance pay, from dismissal for gross misconduct, which removes them.
| Dismissal on a legitimate ground | Dismissal for gross misconduct | |
|---|---|---|
| Notice | Due (1 month for a monthly-paid employee) | Not due |
| Severance pay | Due after one year of service | Not due |
| Accrued leave compensation | Due | Due |
| Who has the final say | The court, on whether the ground is legitimate | The court, on whether gross misconduct exists |
The contract may be terminated without notice for gross misconduct, subject to the court's assessment. Labour Code, article L.41 Severance pay is not due if the dismissal is based on gross misconduct. Labour Code, article L.53
The definition that does not come from Mali
Many articles state that gross misconduct requires "intent to harm the employer". This test comes from French case law. The Malian Code does not define gross misconduct: it leaves the court to assess the facts. For Adama, the court will look at how long he drove without a licence, any concealment, the danger created and the instructions he had received.
3. Adama's case: which route to choose?
Driving for a month on a suspended licence is a serious breach: it exposes Adama, third parties and the company. The ground for dismissal is clearly legitimate. Relying on gross misconduct as well is possible, but it is a gamble: if the court does not accept it, the company will have to pay notice and severance.
Example. Comparing the two routes for Adama, XOF 180,000 per month, 3 years' seniority, with no more favourable collective agreement.
Notice: 1 month, i.e. XOF 180,000 Severance pay: 180,000 × 20% × 3 = XOF 108,000 Cost of dismissal on a legitimate ground: 180,000 + 108,000 = XOF 288,000 Cost if the court upholds gross misconduct: XOF 0 in notice and severance Cost if gross misconduct is rejected: the same XOF 288,000, paid after a lawsuit
Taking the driver off the road at once
A driver without a licence must stop driving as soon as the facts are discovered. Two tools exist. A lay-off suspends the contract without pay, for eight days at most (article L.34). If the company opts for dismissal with notice, it may also release the employee from working during the notice period; the employee then receives pay as if working. Labour Code, article L.44
What you need to do
- Take the employee off driving immediately, by reassignment or a lay-off of eight days at most.
- Gather the evidence: check report, copy of the licence, driving dates.
- Choose the label after costing both routes.
4. Who pays for the losses?
Impounding the truck and the delay have a cost. The director wants to deduct it from Adama's pay. The Code frames this strictly.
No fines, no free deductions
Imposing fines is prohibited, and no deduction may be made from pay outside the cases provided for by the Code. Labour Code, article L.121
Offsetting, within a precise limit
When the employee owes a sum as compensation for damage, it may be offset against pay only within the attachable portion of pay. Labour Code, article L.123 The debt must first be established: acknowledged in writing by the employee, or set by the court. If there is disagreement, the employer goes to the labour court, which hears individual disputes (article L.192).
The imported rule to check
The statement "only gross misconduct makes the employee financially liable" comes from French case law. The Malian Code does not adopt it: it organises how a sum owed is recovered and leaves liability to the court's assessment. In practice, the more clearly the misconduct is established, the more likely a claim for compensation is to succeed.
For road incidents, see also Road accident: sanctions.
What you need to do
- Never deduct the cost of an incident from pay unilaterally.
- Have the debt acknowledged in writing or go to the labour court.
5. Prevention: checking licences
Above all, this file reveals a lack of control. Two simple measures would have prevented it:
- checking licences, authorisations and certifications at hiring and then at regular intervals, and keeping copies;
- including in the internal rules a duty to report without delay any suspension or cancellation of a document required for the job.
The internal rules may contain rules on discipline and on health and safety (article L.64). A written instruction known to the driver makes his silence much harder to excuse, and strengthens the file before the court.
What you need to do
- Keep a table of licence expiry dates for all drivers.
- Have each driver sign the obligation to report any licence suspension.
A closer look: staff delegates
If the driver is a staff delegate, his dismissal requires the labour inspector's prior authorisation, failing which it is void. For gross misconduct, the employer may order a provisional lay-off pending the decision; if authorisation is refused, the lay-off has no effect (article L.277). On categories of misconduct, see Misconduct in the company.
Key takeaways in 6 points
- Separate two questions: how to end the contract, and who bears the losses.
- Set aside French-law "serious misconduct": in Mali, only gross misconduct removes notice and severance.
- Cost a dismissal on a legitimate ground before gambling on gross misconduct.
- Take a driver without a valid licence off the road immediately.
- Never deduct the cost of an incident from pay without an established debt, and only within the attachable portion.
- Check licence validity regularly and require drivers to report any change.