Employment law
Managing Recruitment
The freight forwarder has won a contract and must reinforce its dock team within two weeks. Candidates come forward, three are selected, they start on Monday. Nobody has drawn up a contract, nobody has declared anyone, nobody has seen the doctor. Three weeks later, one of them is injured on a forklift, and the company discovers that the fastest hiring was also the most expensive.
1. Recruiting is not only choosing
Oumar Traoré heads human resources at Bamako Transit, a freight forwarding and handling company employing sixty people. He knows how to select a candidate. What he discovers through successive inspections is that Malian law regulates the choice less than what surrounds it: what you may ask, what you must write, what you must declare and to whom.
Bamako Transit and the people named in this article are fictitious: their names serve only as examples.
Recruitment turns on eight formalities. Two before hiring: checking that the candidate may lawfully be employed, and arranging the medical examination. Three at the time of hiring: the written contract where required, the probationary period if you want one, and the entry in the register. Three afterwards: the declarations to the placement body and to the National Social Welfare Institute, and the filing or endorsement of the contract where the law requires them.
None of these formalities is burdensome on its own. Overlooking them, however, produces consequences that cannot be put right: a fixed-term contract becomes an open-ended one, a probationary period disappears, an undeclared accident becomes a charge on the company.
The most common mistake
Treating the formalities as paperwork to be regularised later. Several of them have an immediate and final legal effect: a probationary period not stipulated in writing does not exist, and no later document will bring it into being.
The choice of candidate is yours. The formalities around it are not negotiable.
2. What you may not take into account
A limit applies before the first interview. The right to work and to training is recognised for every citizen, without any discrimination, and the State ensures equality of opportunity and treatment in employment and access to vocational training.
The Code defines discrimination as any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of destroying employment or impairing equality of opportunity or treatment. It expressly prohibits discrimination based on invalidity, disability, HIV and AIDS. It also forbids any employer from taking union membership or trade union activity into account in hiring decisions.
There are only two exceptions. Distinctions based on the qualifications required for a given job are not discrimination: requiring a driving licence for a driver's post is lawful. And temporary measures taken to establish equality of opportunity between men and women, in particular in access to employment and training, remain possible.
The most common mistake
Asking for an HIV test before hiring, or ruling a candidate out on that basis. The Code expressly lists HIV and AIDS among the prohibited criteria. The request itself is written proof of the discrimination you will later deny.
You may require a qualification. You may not require an HIV status.
What you need to do
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3. The pre-employment medical examination, which comes before and not after
Every worker must undergo a medical examination before being hired or, at the latest, before the end of the probationary period that follows hiring (Social Welfare Code, article 43). That examination has three purposes: to determine whether the worker is medically fit for the intended work, whether he has a condition dangerous to his colleagues, and which posts he must not be assigned to.
After the examination, the occupational physician draws up three documents. The visit slip goes to the employer, who must keep it to show to the labour inspector or the medical labour inspector. The medical record stays with the physician, under medical confidentiality. A third slip is given to the worker, at his request or when he leaves the company.
Two special cases deserve attention. For workers recruited away from the place of employment, the examination takes place at their usual place of residence and the results must be communicated to the occupational physician at the place of employment. And for any contract requiring, at the employer's instance, the worker to settle outside the locality where he lives, the medical examination comes before the writing: the Code provides that the contract must be, after a medical examination, recorded in writing and filed with the regional labour inspectorate of the place of performance for its opinion.
The most common mistake
Holding the medical examination six months after hiring, when someone remembers. The text sets a clear limit: before hiring, or at the latest before the end of the probationary period. After that, the obligation is not merely late, it has been missed.
What you need to do
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4. Writing: when it is mandatory, and what it costs to forget it
An employment contract is freely concluded and may be proved by any means. But writing becomes mandatory in several situations, and its absence produces a specific effect each time. See also our article on the fixed-term contract.
| Situation | What writing requires | What forgetting it costs |
|---|---|---|
| Fixed-term contract | Writing mandatory; filing with the inspectorate before performance where the term exceeds 3 months | The contract is presumed concluded for an indefinite term |
| Probationary engagement | Express written stipulation, with the job, the category and the duration | There is no probationary period; termination follows the dismissal rules |
| Apprenticeship contract | Writing and filing of one copy with the inspectorate of the place of apprenticeship | The contract is treated as an open-ended contract |
| Part-time work | Writing mandatory; opinion of the delegates and notification to the inspector | The reduced hours cannot be relied on against the worker |
| Settlement outside the locality of residence | Medical examination, then writing, then filing with the regional inspectorate for its opinion | Fine, and possible challenge to the employment terms |
| Foreign worker | Writing, work permit and endorsement by the National Labour Directorate | The worker may have the contract declared void, and repatriation falls on the employer |
| Labour-only subcontracting | Writing, two copies sent without delay to the inspectorate | Fine; the contractor remains substituted for the insolvent subcontractor |
The probationary period, lost in a single sentence
A probationary engagement must be expressly stipulated in writing (Labour Code, article L.30). It states the worker's job and occupational category, and the length of the probation. That length is in principle equal to the notice period, but may be longer, up to six months including renewal, to take account of the technique and usages of the occupation, or for workers starting out in their trade.
Two consequences follow. During probation, the contract may be terminated without notice and without compensation on either side. But continuing the service after probation has expired, without renewal, amounts to concluding an open-ended contract taking effect on the date probation began, and the probation then counts towards every right attached to length of service. On the procedure for ending an ordinary contract, see our article on dismissal.
Example. Bamako Transit engages a customs clearing agent on 1 March, with no written mention of a probationary period, and lets him go on 15 May for poor results.
- Probationary period stipulated in writing: none
- Consequence: there is no probation, and the contract is an ordinary contract from 1 March
- Termination must therefore follow the dismissal procedure: notification to the labour inspector, written notice stating the ground
- Without written notification or a stated ground, the court must award compensation for procedural defect of up to one month's gross salary
- To which are added the payment in lieu of notice and, where appropriate, damages for wrongful termination
A probationary period that is not written does not exist. And no later document brings it into being.
What you need to do
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5. Declarations: three recipients, three deadlines
A hiring is declared three times, and the deadlines differ. Every employer must notify the National Social Welfare Institute of every hiring within eight days of the start of work, by means of a movement declaration sent in duplicate to the Manpower Office (now ANPE), which forwards one copy to the Institute (Social Welfare Code, article 163).
The Labour Code adds that every hiring is the subject, within fifteen days, of a declaration drawn up by the employer and sent to the body that carried out the placement. That declaration states the employer's name and address, the nature of the undertaking, the worker's civil status and identity, his registration number, his occupation, where applicable his previous employer's name, and the date of hiring.
Upstream of these, a further formality is widely overlooked: anyone opening an establishment or a site of any kind must declare it to the public placement service or to a fee-charging placement office.
Finally, the payment of social benefits presupposes the employer's affiliation and the worker's registration. Registration requires an application by the worker, made on a form issued by the Institute and accompanied by the civil-status documents of the beneficiary, his spouse and his children.
| Formality | Deadline | Recipient |
|---|---|---|
| Declaration of opening of an establishment or site | On opening | Public placement service or fee-charging placement office (Labour Code, article L.306) |
| Arrival movement declaration | 8 days | Manpower Office (ANPE), in duplicate, for forwarding to INPS (Social Welfare Code, article 163) |
| Hiring declaration under the placement rules | 15 days | Body that carried out the placement (Labour Code, article L.309) |
| Worker's registration | Before any benefit is paid | INPS, on a form and with civil-status documents (Social Welfare Code, article 164) |
| Declaration of the hiring of a child | 15 days | ANPE, with birth certificate, medical certificate and photographs (decree no. 2022-0125, article D.189-33 new) |
What an undeclared hiring costs
The National Social Welfare Institute may pass on to employers the cost of the benefits paid to workers for whom the movement declaration was never sent. In other words, the accident of an undeclared worker is compensated, but the bill comes back to the company.
Example. A handler is hired on 2 March and declared nowhere. He is injured on a forklift on 20 April.
- The movement declaration should have been sent by 10 March at the latest
- The accident declaration was due within 48 hours, i.e. by 22 April at the latest
- INPS pays the benefits to the victim, as the law requires it to
- In the absence of a movement declaration, the Institute may pass the cost on to the employer
- To which is added the fine of XOF 20,000 to 50,000 for failure to file the hiring declaration under the placement rules
Eight days for INPS, fifteen for placement. The first deadline is the one that exposes you.
What you need to do
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6. Recruiting through an intermediary: placement, temporary work, outsourcing
Three arrangements allow hiring without recruiting directly, and they have neither the same regime nor the same risks.
Placement
Placement consists in providing, as a regular activity, services to match job offers and applications, without the person providing them becoming a party to the employment relationship. The public placement service is free of charge. Fee-charging placement offices must be authorised, operate under the supervision of the National Employment Directorate, and their fees fall entirely on employers: no payment may be taken from workers. They are also forbidden to take or accept any form of security deposit.
Temporary agency work
Where temporary labour is employed through a temporary work agency, a supply contract is made between the user and that agency, which must be approved by the minister responsible for labour. The employment contract is concluded in writing between the temporary work agency and the worker, and may not exceed twenty-four months including renewals. The agency is deemed the employer, with the rights and obligations attached to that status, and the worker pays nothing for being placed. See also our articles on temporary work and on replacing an absent employee with a temporary worker.
One trap sits in the implementing decree: if the user continues to employ a temporary worker after the end of his assignment, without having concluded an employment contract with him or a new supply contract, that worker is deemed bound to the user by an open-ended employment contract.
Outsourcing
Outsourcing is the transfer of all or part of an undertaking's activity to a specialised external partner. Applied to human resources, it transfers activities or functions to an external organisation. The Code expressly provides that, on outsourcing, current employment contracts subsist between the new operator and the staff, and that the worker's right of option in the event of a substantial modification is guaranteed. An outsourcing contract may be renewed without limit.
The most common mistake
Letting a temporary worker carry on “for now” after the assignment ends. That continuation creates an open-ended contract with the user company, not with the agency.
A temporary worker who stays one day too long becomes your permanent employee.
What you need to do
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7. What an irregular recruitment costs
Breaches of the rules on fixed-term contracts, endorsement, mandatory particulars and probation are punishable by a fine of XOF 10,000 to 50,000, raised to XOF 20,000 to 100,000 on repeat offence (Labour Code, article L.316). Breaches of the placement and hiring declaration rules are punishable by a fine of XOF 20,000 to 50,000, raised to XOF 50,000 to 250,000 on repeat offence.
Some offences go beyond a fine. A fine of XOF 50,000 to 300,000 and imprisonment of one to six months, or one of those two penalties, applies to anyone who has employed a minor without the required written authorisation, or who, by violence, threat, deception or promises, has forced a worker to take employment against his will. The same penalty applies to an employer who has knowingly engaged or kept in his service a worker still bound by an apprenticeship contract.
A particular civil liability is added: where a worker who has wrongfully terminated a contract takes up new employment, the new employer is jointly liable for the loss caused to the previous one if it is shown that he took part in the enticement, that he knew the worker was already bound, or that he continued to employ him after learning of it.
Finally, the fine is incurred as many times as there are breaches, in particular where several workers were employed in conditions contrary to the law, the total not being allowed to exceed fifty times the applicable maximum rate.
Example. Bamako Transit hired six handlers for a campaign, with no written contract, no declaration and no medical examination.
- Failure to file the hiring declaration under the placement rules: a fine of XOF 20,000 to 50,000, incurred per worker
- At the maximum rate, for 6 workers: 6 × 50,000 = XOF 300,000
- Applicable legal ceiling: 50 × 50,000 = XOF 2,500,000, not reached
- To which are added the missing medical examinations and, if an accident occurs, the cost of the benefits paid
The fastest hiring is rarely the cheapest.
A closer look: declaring the hiring of a child
Decree no. 2022-0125/PT-RM of 4 March 2022 rewrote the rules on the employment of children, and those rules bear directly on recruitment.
Children may not be employed in any undertaking, even as apprentices, before the age of fifteen, save by written derogation issued by order of the minister responsible for labour, having regard to local circumstances and to the tasks that may be entrusted to them.
Every newly hired child is the subject, within fifteen days of being hired, of a declaration by the employer to the National Employment Agency, which forwards it to the district labour inspector. A birth certificate extract, the medical certificate and photographs of the child are attached to that declaration.
ANPE then opens the young worker's file and issues him a work card bearing the visible words “young worker”. A duplicate of that card is given to the employer, who must keep it. An identical declaration is due for any change in his situation, and when he leaves the establishment.
Key takeaways in 6 points
- Base your selection on the qualifications the post requires, the only distinctions the Code does not treat as discrimination.
- Arrange the medical examination before hiring or, at the latest, before the end of probation, and keep the visit slip.
- Stipulate the probationary period in writing in the contract: without writing, it does not exist.
- File a fixed-term contract of more than three months with the inspectorate before any performance begins.
- Declare the arrival within eight days to ANPE for forwarding to INPS, and within fifteen days to the placement body.
- Never let a temporary worker carry on after his assignment without a new contract: he becomes your permanent employee.