Employment law
Dismissal: can the employee's lawyer attend the meeting?
Monday morning at the Hôtel Baobab in Bamako, the reception till shows a shortfall of XOF 300,000. The director wants to meet Mariam, the receptionist on duty, and she announces that she will come with her lawyer. The hotel's consultant, template letter in hand, claims that a lawyer "makes the procedure irregular" and that a two-day period must be observed before any decision. The problem: these rules come from French law, and the Malian Labour Code says nothing of the kind.
The Hôtel Baobab employs 60 people in Bamako. Mariam has been a receptionist there for five years and earns an average of XOF 250,000 a month. This company and the people mentioned are fictitious: their names are used for illustration only.
1. What exactly are we talking about?
The pre-dismissal meeting is a meeting between the employer and the employee before the decision to dismiss, to set out the complaints and hear the employee's explanations. In France, it is compulsory and tightly regulated: written invitation, assistance for the employee, a minimum period before notification.
The Malian Labour Code, however, does not provide for a pre-dismissal meeting. It sets other requirements, which are the real conditions for a valid dismissal in Mali:
| Requirement of the Malian Code | What it demands | Text |
|---|---|---|
| Legitimate grounds | The dismissal rests on a real and accurate reason, which the employer proves if it is disputed | L.51 |
| Written notification | The termination and notice are notified in writing, stating the grounds | L.41 and L.43 |
| Informing the labour inspector | Registered letter stating the grounds; the inspector's opinion within 15 days | L.40 |
| Special procedures | Inspector's authorisation for a staff delegate; consultation of delegates for an economic dismissal | L.277, L.47 and L.48 |
The trap of imported templates
"Invitation to a pre-dismissal meeting", "two working days' waiting period", "the employer may not be assisted by a lawyer": these rules come from the French Labour Code and French case law. None of them appears in the Malian Labour Code or in its implementing Decree No. 96-178/P-RM of 13 June 1996. Drawing inspiration from them is not prohibited, but presenting them as legal obligations is a mistake.
In Mali, the law does not require a meeting. It requires grounds, a letter and notice to the inspector.
2. Should you hear the employee anyway?
Yes, in most cases, for three reasons.
- The collective agreement or internal rules may provide for it. The internal rules set the company's disciplinary rules (Labour Code, article L.64), and a collective agreement is binding on the employer it covers (article L.77). If either sets out a procedure, follow it.
- The grounds must be accurate. A dismissal based on inaccurate grounds is unfair (Labour Code, article L.51). By hearing Mariam, the director may learn that an intern also had access to the till that day.
- The burden of proof lies with the employer. If the dismissal is disputed, the employer proves the grounds (L.51). The dated record of a discussion forms part of the file.
What the approach protects
Hearing the employee before deciding protects the company first of all against its own mistake: a dismissal based on a poorly established fact costs more than an hour of discussion.
What you need to do
- Check whether the collective agreement or internal rules provide for a procedure before dismissal.
- Hear the employee before making the decision, not afterwards.
- Write a dated record of the discussion and keep it on file.
3. Who may accompany the employee?
No Malian text governs assistance for the employee at a discussion held before dismissal. However, the Code organises assistance in other, similar situations, which provide useful benchmarks.
| Situation | Who may assist the employee | Text |
|---|---|---|
| Mutually agreed termination meeting | A staff delegate or another employee of the company | L.50 bis |
| Individual complaint to the employer | Staff delegates present it; the employee may also present it personally | L.278 and L.279 |
| Hearing before the labour court | A worker or employer from the same sector, a lawyer or a union representative | L.204 |
| Conciliation of a collective dispute | A duly authorised person | L.220 |
Mutually agreed termination is the termination of an open-ended contract decided by mutual agreement and recorded in a written agreement (Labour Code, article L.50 bis). It is the only meeting for which the Code specifies who may assist the employee.
And Mariam's lawyer?
No Malian text requires or prohibits the lawyer's presence at a discussion freely organised by the employer. The Hôtel Baobab may accept it. If it prefers an internal discussion, it may offer Mariam the option of being accompanied by a staff delegate or a colleague, on the model of mutually agreed termination, and invite her to submit her explanations in writing as well.
The French rule that the employer "may refuse the employee's lawyer in disciplinary matters" has no more basis in Mali. And before the labour court, Mariam will in any case be able to be assisted or represented by a lawyer (Labour Code, article L.204).
What you need to do
- Offer the employee the option of being accompanied by a staff delegate or a colleague.
- Decide in advance how to answer a request for a lawyer to attend, and give the answer in writing.
- Allow the employee to submit written explanations.
4. Can the employer bring a lawyer?
The hotel's consultant argues that a lawyer at the director's side would make the procedure irregular. That rule is French. In Mali, a procedural irregularity has a precise meaning: a dismissal justified on the merits but notified without a letter or without stating the grounds. It is penalised by compensation of up to one month's gross salary (Labour Code, article L.52). The presence of an outside adviser does not appear in this text.
Nothing therefore prevents the director of the Hôtel Baobab from being accompanied. The question is practical: a lawyer facing an employee on her own creates an imbalance and hardens positions. It is better to consult the adviser before the discussion, to check the grounds and documents, and to hold the discussion with an internal manager.
The most common mistake
Believing that who attends the meeting can make the dismissal irregular, while neglecting what truly makes it fragile: the lack of a written, reasoned letter (Labour Code, article L.41) and failing to inform the labour inspector (Labour Code, article L.40).
What you need to do
- Consult an outside adviser before the discussion to check the grounds and documents.
- Hold the discussion with an internal manager: director, HR manager or direct supervisor.
- Offer the employee equivalent assistance if a third party accompanies the employer.
5. What truly makes a dismissal irregular or unfair
| Failure | Consequence | Text |
|---|---|---|
| No written notification, or grounds not stated, for a justified dismissal | Compensation of up to one month's gross salary | L.52 |
| Grounds missing or inaccurate, or dismissal based on union activity | Damages for unfair dismissal | L.51 |
| Labour inspector not informed | Fine of XOF 10,000 to 50,000 | L.316 |
| Staff delegate dismissed without authorisation | Dismissal void and reinstatement | L.277 |
| Notice not respected | Payment equal to the pay for the period not worked | L.42 |
Example. The Hôtel Baobab dismisses Mariam for gross misconduct. Two outcomes are possible before the court.
Scenario 1, misconduct proven but letter without grounds: procedural compensation of up to XOF 250,000 (L.52)
Scenario 2, misconduct not proven: notice of 250,000 + severance pay of 250,000 × 5 × 20% = XOF 500,000
In scenario 2, damages set by the court are added (L.51)
Gross misconduct is a breach so serious that it allows termination without notice or severance pay; the court checks whether it is real (Labour Code, articles L.41 and L.53). For details of the sums due, see Ending an open-ended contract: what rights for the worker?.
It is not the presence of a lawyer that weakens a dismissal. It is poorly established grounds or a poorly written letter.
6. Conducting the discussion without weakening the file
| Step | What to do | Basis |
|---|---|---|
| 1. Gather the facts | Dates, documents and statements, before any meeting | Proof of grounds (L.51) |
| 2. Hear the employee | Set out the facts, listen, record the explanations | Recommended practice, or collective agreement and internal rules |
| 3. Decide | After the discussion, never during it | Accuracy of grounds (L.51) |
| 4. Notify in writing | The termination, the notice and the grounds | L.41 and L.43 |
| 5. Inform the labour inspector | Registered letter stating the grounds | L.40 |
| 6. Pay and hand over the certificate of employment | As soon as work ends | L.103 and L.61 |
The "two working days' waiting period" often quoted comes from French law: the Malian Code does not impose it. It is still wise not to announce the decision during the discussion. For sanctions short of dismissal, see Disciplinary sanctions; for a dismissal without misconduct, see Dismissal on grounds of poor performance.
What you need to do
- Gather the facts and documents before meeting the employee.
- Notify the decision in writing, stating the grounds and the notice period.
- Inform the labour inspector by registered letter, stating the grounds.
A closer look: before the court, lawyers are fully welcome
If Mariam challenges her dismissal, she may first ask the labour inspector to settle the dispute amicably (Labour Code, article L.190). Failing agreement, the case goes before the labour court, where proceedings are free of charge (article L.202).
Before the court, the parties may be assisted or represented by a worker or employer from the same sector, by a lawyer registered with the bar or by a union representative. The employer may also be represented by a director or employee of the company. Except for lawyers, the authority to represent must be in writing (article L.204). The hearing begins with an attempt at conciliation (article L.208).
In other words, the lawyer the Hôtel Baobab might refuse at a discussion will meet the company in court. The best protection remains a clean file: proven grounds, a reasoned letter, an informed inspector.
Key takeaways in 6 points
- Do not present the pre-dismissal meeting as an obligation under the Malian Code: check the collective agreement and internal rules instead.
- Still hear the employee before deciding, to check that the grounds are accurate.
- Offer the employee the assistance of a staff delegate or a colleague, and answer any request for a lawyer to attend in writing.
- Prefer to consult your adviser before the discussion, and hold the meeting with an internal manager.
- Always notify the dismissal in writing, stating the grounds, and inform the labour inspector by registered letter.
- Build the file as if it were to be examined by a judge, because the burden of proving the grounds lies with you.