Employment law
Managing the Employment Contract: What Each Stage Requires, from Signature to Termination
The metalworking shop has been running for eleven years with the same welders. The manager has never had a dispute, never written an amendment, never given written notice. The day he decides to close a production line, he discovers that eleven years without writing is not eleven years of peace: it is eleven years of evidence he does not have.
1. The contracts Malian law knows, and those it ignores
Salif Camara runs Kayes Métal, a metalworking shop employing twenty-two people. He speaks of “internship contracts”, “daily contracts”, “site contracts”. The Labour Code, for its part, knows only a closed list, and anything outside it falls automatically into a single category.
Kayes Métal and the people named in this article are fictitious: their names serve only as examples.
An individual employment contract is the agreement by which a person undertakes to place his professional activity, for remuneration, under the direction and authority of another person called the employer. Any contract that does not meet the definitions of the fixed-term contract, the apprenticeship contract, the qualification contract or the probationary engagement must be treated as an open-ended contract (Labour Code, article L.19).
That sentence is the keystone of the whole subject. It means the open-ended contract is not a choice: it is the default regime, applying the moment one of the special forms has not been respected.
| Form of contract | What characterises it | What turns it into an open-ended contract |
|---|---|---|
| Open-ended contract | Any employment relationship falling into no other category | The default regime |
| Fixed-term contract | Term set in advance, 2 years at most, writing mandatory | No writing; more than two renewals; continuation beyond the term |
| Fixed-term contract for a defined work | Performance of a work whose duration cannot be assessed in advance | Renewal, which is prohibited for it |
| Probationary engagement | Express writing, 6 months at most including renewal | Continuation of service after probation, without renewal |
| Apprenticeship contract | Methodical and complete training against an allowance, written and filed | No writing or no filing with the inspectorate |
| Qualification contract | Unemployed young graduates, 6 months to 2 years, written and filed | No writing or no filing |
| Temporary agency contract | Concluded with the temporary work agency, 24 months at most | Continuation with the user after the assignment ends |
The most common mistake
Inventing a form of contract. The “daily contract renewed every month” does not exist: either the worker is engaged by the hour or by the day for an occupation not exceeding one day, in which case a particular regime applies, or he comes back every day and holds a contract whose duration is measured otherwise.
The open-ended contract is not a choice. It is what remains when a special form has not been respected.
2. Concluding: writing, filing, endorsement
Whatever the place of conclusion and the residence of the parties, every contract concluded for performance in Mali falls under the Labour Code. Its existence is established in whatever form the parties adopt, and it may be proved by any means. A written contract is exempt from all stamp and registration duties. See also our article on the fixed-term contract.
The fixed-term contract follows its own rules. It may not be concluded for more than two years. The worker may not renew it more than twice with the same undertaking, the initial contract not counting as a renewal, and continuing the service outside that framework constitutes, as of right, the performance of an open-ended contract. It may not be used to fill on a lasting basis a post linked to the normal and permanent activity of the undertaking.
Five categories escape the two-renewal limit: workers engaged by the hour or by the day for an occupation not exceeding one day, seasonal workers engaged for a campaign, workers engaged as extra staff for a surge in activity, those temporarily replacing a worker whose contract is lawfully suspended, and workers in sectors where it is customary not to use open-ended contracts.
A firm prohibition is added: fixed-term contracts may not be used in the six months following an economic dismissal, for the posts abolished as a result, unless the contract, non-renewable, does not exceed three months.
Mandatory particulars of the fixed-term contract
The implementing decree requires precise particulars: where the contract temporarily replaces a worker whose contract is lawfully suspended, the name and qualification of the replaced worker; where it has a precise term, the expiry date and, where applicable, a clause allowing it to be deferred; where it has none, the minimum duration for which it is concluded; the designation of the post or job held; and the length of any probationary period.
The clauses you may add, and their limits
The worker owes his entire professional activity to the undertaking, unless the contract provides otherwise, but he remains free to carry on outside his working hours any professional activity that cannot compete with it. Any clause prohibiting the worker from carrying on any activity after the contract ends is void; a non-competition clause is valid only if limited to six months at most and to a radius of fifteen kilometres around the place of work, and only where the worker terminates the contract or is dismissed for gross misconduct.
What you need to do
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3. Modifying: who proposes, who refuses, who bears the termination
The employer and the worker may, during performance of the contract, propose its modification (Labour Code, article L.58). Substantial means any term without which the worker would not have contracted, such as pay, working conditions, place of work or the job held.
The mechanism is symmetrical, but its consequences are not. If the proposal comes from the worker, is substantial and the employer refuses it, the worker may terminate, but the termination is attributed to him. If the proposal comes from the employer, is substantial and the worker refuses it, the employer may terminate, but the termination is attributed to him and must follow the dismissal procedure.
One important qualification protects the employer: a dismissal following the refusal of an offer of modification is wrongful only if the offer stems from an intention to harm or from blameworthy carelessness. A genuine reorganisation is therefore not in itself an abuse.
If the worker accepts the modification, it can take effect only after a period equal to the notice period, capped at one month.
A change of employer
Where the employer's legal situation changes (succession, sale, merger, transformation of the business, incorporation), all employment contracts current on the day of the change subsist between the new operator and the staff. The cessation of the undertaking, even in bankruptcy or judicial liquidation, does not remove the duty to follow the dismissal rules.
The most common mistake
Applying a substantial modification the day after it is accepted. The Code imposes a waiting period equal to the notice period, capped at one month. A transfer accepted on the 3rd of the month takes effect only at the end of that period.
Proposing a modification is free. It is the refusal that decides who bears the termination.
What you need to do
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4. Suspending: fourteen situations, and three ways of paying for them
Suspension puts the employment relationship on hold without ending it. The Code lists fourteen cases, and the question that matters is not whether the absence is allowed (it is) but who funds it.
| Cause of suspension | Duration provided | Who pays |
|---|---|---|
| Employer's military or civic obligations closing the establishment | Duration of the obligations | The employer, up to the notice period |
| Worker's military or civic obligations | Statutory duration | The employer, up to the notice period |
| Non-occupational sickness or accident | 6 months, extended until replacement | The employer, according to length of service |
| Industrial accident or occupational disease | Duration of the incapacity | INPS |
| Maternity leave | 14 weeks | INPS, through the daily benefit |
| Police custody or detention | 6 months at most | Nobody |
| Technical or economic short-time working | 3 months, 6 in a serious health crisis | Nobody |
| Lawful strike or lock-out | Duration of the dispute | Nobody |
| Disciplinary lay-off | 8 days at most | Nobody |
| Paid leave and workers' education leave | According to accrued rights | The employer, through the leave allowance |
| Elected office or political function | Duration of the mandate | Nobody |
| Widowhood of a female worker | 4 months and 10 days at most | Nobody |
| Pilgrimage to the holy places | Duration of the pilgrimage | Nobody |
| State-organised cultural and sporting events | Duration of the authorisation | Nobody |
Compensation for non-occupational sickness deserves a word. During the first year of service, the employer pays an amount equal to the remuneration the worker would have received over a period equal to the notice period. Beyond the first year, he pays half that remuneration during the month following the period at full pay.
Technical and economic short-time working
The employer may place all or part of his staff on temporary short-time working for economic or technical reasons. Technical short-time working results from a collective interruption due to accidental causes; economic short-time working, from an inability to keep workers normally employed owing to a shortage of work of economic origin.
Three conditions apply: seeking the opinion of the staff delegates or the union committee, informing the competent regional Labour director beforehand, and not exceeding three months (six in a serious health crisis). Beyond that, or where the worker does not accept the proposed conditions, any termination is attributed to the employer. During that period, the employer may not hire new workers at all, except in unaffected sectors. For the conditions and effects in detail, see our article on technical short-time working.
Every suspension must be granted. Not every suspension must be paid.
What you need to do
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5. Terminating a fixed-term contract: three doors, and no more
A fixed-term contract may be ended before its term only for gross misconduct, by agreement of the parties recorded in writing, or through force majeure. There is no fourth route, and the cost of getting it wrong is mechanical.
Where the employer disregards that rule, the worker is entitled to damages equal to the remuneration he would have received until the end of the contract.
Example. Kayes Métal ends a twelve-month fixed-term contract in its fifth month, for poor results.
- Ground relied on: poor results, which is neither gross misconduct, nor force majeure, nor a written agreement
- Months remaining until the term: 7
- Gross monthly salary: XOF 150,000
- Damages due: 150,000 × 7 = XOF 1,050,000
- To which is added the precarity payment, since the relationship does not continue
The precarity payment
Where the contractual relationship does not continue at the end of a fixed-term contract, the worker is entitled, as a supplement to his wages, to a payment compensating the precarity of his situation. Failing a rate set by collective agreement, the minimum is 2.5% of the total gross remuneration received during the contract, and it is added to the last month's salary.
It is not due in three cases: for workers engaged by the hour or by the day, seasonal workers, replacements and workers in customary sectors; where the worker refuses an open-ended contract for the same job at a salary at least equal; and where the contract is terminated early at the worker's initiative or through his gross misconduct.
Example. A twelve-month fixed-term contract ends normally, at a salary of XOF 150,000 a month.
- Total gross remuneration for the period: 150,000 × 12 = XOF 1,800,000
- Minimum rate of the precarity payment: 2.5%
- Payment due: 1,800,000 × 2.5% = XOF 45,000
- It is added to the last month's salary
Gross misconduct, written agreement, force majeure. There is no fourth door.
6. Terminating an open-ended contract: the procedure, in order
An open-ended contract may always be ended by the will of either party, subject to notice. A worker who resigns must notify his decision in writing, and the employer may not presume a worker's resignation. Every employer who wishes to dismiss must inform the district labour inspector by registered letter setting out the particulars of the worker, of the employer and of the ground for dismissal (Labour Code, article L.40). The inspector has fifteen days to give an opinion, and the worker's application to the labour court suspends the employer's decision.
Notice is given in writing by the party taking the initiative. It begins to run from the date the notification is delivered, and the ground for termination must be stated in it.
| Category of staff | Length of notice |
|---|---|
| Staff paid by the day or by the week | 8 days |
| Workers paid monthly | 1 month |
| Supervisory staff and equivalent | 2 months |
| Managers and senior staff | 3 months |
These periods apply in the absence of collective agreements or decrees in their place. The contract may be ended without notice for gross misconduct, subject to the assessment of the competent court.
During notice, both parties remain bound by all their obligations. The worker is allowed, after informing his employer, to be absent one day per week to look for a new job, with no reduction in pay, and those days may be grouped at the end of the notice period at his request. On dismissal, once half the notice period has been served, a worker who has found a job may leave without paying compensation for the unexpired notice. See also our article on dismissal.
What failing on form costs
If the dismissal is well founded on the merits but is given without written notification of the termination or without stating the ground, the court must award the worker compensation of no more than one month of his gross salary. That compensation penalises form alone: it is cumulative with whatever is due on the merits.
Wrongful termination gives rise to separate damages, distinct from both the payment in lieu of notice and the severance payment. Termination is wrongful in particular where the dismissal has no legitimate ground, where the stated ground is inaccurate, or where it is motivated by the worker's opinions or trade union activity. If challenged, it is for the employer to prove a legitimate ground.
Inspector informed, ground in writing, notice served. Three steps, in that order.
What you need to do
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7. End-of-contract payments
Three separate payments may fall due on departure, and they are not triggered in the same cases.
The severance payment is due to a worker who is dismissed, or whose contract ends through force majeure, provided he has at least one year of continuous service. It is calculated by taking the monthly average of the remuneration received over the last twelve months and applying to it a percentage per year: 20% for each of the first five years, 25% from the sixth to the tenth year inclusive, and 30% for each year beyond the tenth. Fractions of years count. It is not due for gross misconduct. See also our article on the severance payment.
The long-service payment goes to a worker who resigns after at least ten years of continuous service, calculated on the same basis.
The retirement payment replaces both of the above where the worker permanently ceases his activity to draw his pension or the solidarity allowance, and is calculated on the same basis.
Example. Kayes Métal dismisses a workshop supervisor with eight years' service, whose average remuneration over the last twelve months is XOF 180,000.
- First five years, at 20%: 180,000 × 20% = XOF 36,000 per year, i.e. 36,000 × 5 = XOF 180,000
- Sixth to eighth year, at 25%: 180,000 × 25% = XOF 45,000 per year, i.e. 45,000 × 3 = XOF 135,000
- Severance payment due: 180,000 + 135,000 = XOF 315,000
- To which are added the compensatory payment for accrued leave and, on an economic dismissal, the special payment of one month's gross salary
One point to watch at the end of a career. Retirement age in the private sector is sixty for category A or equivalent and fifty-eight for categories B, C, D and E. The relationship may continue by agreement up to sixty-two for category A and sixty for the others. And early departure at the worker's initiative, from fifty-seven for category A and fifty-five for the others, does not constitute a resignation.
Twenty, twenty-five, thirty per cent. The average of the last twelve months, not the last salary.
A closer look: termination by mutual agreement
Law no. 2017-021 of 12 June 2017 introduced into the Malian Labour Code a third route for ending an open-ended contract, as an alternative to resignation and dismissal.
An employer and a worker bound by an open-ended contract may agree on a mutual termination, at the initiative of either. It takes the form of a protocol freely signed by both parties, and the worker may be assisted during the meeting by a staff delegate or another employee of the undertaking.
Two safeguards frame the process. The worker's acceptance must not follow pressure from the employer, and where consent is vitiated the mutual termination is void and of no effect.
The protocol determines the terms of the termination, in particular the specific departure payment, which may in no case be lower than the statutory severance payment. Termination takes effect on the date set in the protocol, without notice. A copy is sent to the district labour inspectorate for information, and any dispute is settled by arbitration of the inspectorate.
Key takeaways in 6 points
- Check that the form of contract you have chosen exists in Malian law: anything outside a special category is an open-ended contract.
- Never exceed two renewals of a fixed-term contract, nor a total duration of two years.
- Put every substantial modification in writing and wait the period equal to the notice period, capped at one month, before applying it.
- End a fixed-term contract before its term only for gross misconduct, written agreement or force majeure, on pain of owing the remaining salaries.
- Inform the labour inspector before any dismissal and state the ground in the notice letter.
- Calculate the severance payment on the average of the last twelve months, at 20%, 25% then 30% according to length of service.