Employment law
Disciplinary suspension: eight days at most, and a procedure to follow
On the Solibat SARL construction site in Kati, the concrete mixer has been running since dawn when the site manager catches Seydou, a mason, on scaffolding without a harness, for the third time this month. Furious, he announces a fifteen-day suspension and a 20,000 XOF deduction "to set an example". Two decisions made in one minute, and two irregularities. Handled badly, the sanction backfires on the company.
The companies and people named in this article are fictitious. Their names are used for illustration only.
1. What exactly are we talking about?
A disciplinary sanction is a measure the employer takes to punish an employee's breach of duty. Disciplinary suspension is one of them: the employee is kept away from work for a few days, without pay, but remains an employee.
In legal terms, suspension puts the employment contract on hold. The contract is paused: the employee does not work, the employer does not pay, but the contract is not terminated. The Code includes it among the grounds for suspending a contract and sets a clear limit: it may not exceed 8 days (Labour Code, article L.34). This suspension is without pay (Labour Code, article L.38).
Why does this sanction exist? It marks a serious breach without going as far as dismissal. Why the ceiling? It protects the employee against a prolonged loss of income.
| Sanction | Effect on pay | Effect on the contract |
|---|---|---|
| Warning | None | The contract continues as normal |
| Disciplinary suspension | No pay for the days of suspension (8 at most) | The contract is suspended, then resumes |
| Dismissal | Pay stops at the end of the notice period | The contract ends |
The Code does not itself set out the full scale of sanctions. It is found in the collective agreement and in the company's internal rules. See Disciplinary sanctions.
The most common mistake: going beyond eight days
The fifteen days announced to Seydou are irregular. The ceiling comes from the Code itself. A collective agreement may be more favourable to the employee, but it may not depart from the mandatory provisions of the law (article L.70). As for internal rules, the labour inspector requires the removal of any clause contrary to the law (article L.66). A ten- or fifteen-day suspension therefore remains irregular, whatever internal text provides for it.
Suspension puts the contract on hold. It does not end it, and never for more than eight days.
What you need to do
- Check that your internal rules provide for no suspension longer than eight days.
- Reserve suspension for serious breaches, between a warning and dismissal.
2. Suspension or fine: the line not to cross
The 20,000 XOF deduction announced "to set an example" raises another problem. It matches no day off work: it is a fine.
The Code is categorical: the employer is prohibited from imposing fines (Labour Code, article L.69). It says so again in the section on wages, where it also prohibits any deduction from pay other than those it provides for, such as taxes and social contributions (articles L.121 and L.122).
The difference is clear. Not paying the days the employee does not work, during a lawful suspension, is the normal consequence of suspension. Deducting a sum from pay as punishment is a fine, and therefore an offence.
What a disguised fine costs
An employer who imposes a fine is itself liable to a criminal fine of 20,000 to 100,000 XOF. For a repeat offence, it rises to 40,000 to 200,000 XOF, with possible imprisonment of fifteen days to three months (Labour Code, article L.318).
Example. Seydou is paid by the day, 7,500 XOF per working day. Compare two decisions:
Lawful 3-day suspension: 3 × 7,500 = 22,500 XOF not paid, because Seydou does not work
Flat 20,000 XOF deduction with no absence: prohibited fine (article L.69)
Risk for the employer in the second case: criminal fine of 20,000 to 100,000 XOF (article L.318)
For an employee paid monthly, check the collective agreement or the internal rules for how an unpaid day is calculated.
Not paying a day not worked is allowed. Deducting a sum as punishment is a fine.
What you need to do
- Remove any flat-rate deduction used as a sanction from your practices and your internal rules.
- Limit the loss of pay to the days of suspension actually imposed.
3. Disciplinary suspension or interim suspension?
The same word covers two measures of different kinds. Disciplinary suspension is a sanction: it punishes an established fact. Interim suspension, often called "precautionary", is a holding measure: it keeps the employee away while a decision is made.
| Disciplinary suspension | Interim suspension (staff delegate) | |
|---|---|---|
| Nature | A sanction | A holding measure |
| Timing | After the disciplinary procedure | Immediately, in case of gross misconduct |
| Duration | 8 days at most (article L.34) | Until the labour inspector's decision |
| If no follow-up occurs | Not applicable: the sanction has been served | The suspension is deprived of all effect |
The only case the Code organises
The Code provides for interim suspension only for protected employees. To dismiss a staff delegate, the employer must obtain the labour inspector's authorisation. In case of gross misconduct, it may immediately suspend the delegate pending the decision. If the inspector refuses the dismissal, the suspension is deprived of all effect (Labour Code, article L.277). In practice, the employer must then pay for the days the delegate was kept away.
This protection also covers election candidates, delegates for six months after their term (article L.277), union delegates (article L.263) and staff representatives on the health and safety committee (article L.281). A dismissal made without authorisation is void, and the delegate is reinstated. See Staff representative.
For other employees, the Code says nothing specific. Prudence dictates not keeping an employee away without pay beyond eight days, since article L.34 sets that ceiling for suspension without distinction.
The most common mistake: talking about "serious misconduct"
Many templates refer to precautionary suspension "for serious misconduct" (faute grave). Serious misconduct is a French-law concept. Malian law uses gross misconduct, assessed by the court (articles L.41 and L.277).
One breach, one sanction
Solibat suspends Seydou for three days, then, a week later, wants to dismiss him for the same facts. The Code does not deal with this case expressly. But an employer who sanctions the same breach twice weakens its position: in a dispute, it must prove a legitimate reason for dismissal (article L.51). A fact already sanctioned is hardly convincing.
Disciplinary suspension punishes. Interim suspension awaits a decision.
What you need to do
- State clearly in each decision whether it is a sanction or a holding measure.
- Request the labour inspector's authorisation before dismissing any protected employee, even after an interim suspension.
- Choose a single sanction per breach, after assessing its seriousness.
4. Imposing a lawful suspension, step by step
Solibat has 70 employees. Internal rules are therefore mandatory: the Code requires them in every industrial, commercial or agricultural company with at least ten employees (article L.62).
The internal rules are the document, drawn up by the head of the company, that sets the rules of conduct at work. Their content is limited to the technical organisation of work, discipline, health and safety, and wage payment arrangements (Labour Code, article L.64). That is where the scale of sanctions must be written. See Drafting internal rules.
The internal rules do not take effect on signature. They are submitted to staff delegates, who have fifteen days to comment, then to the labour inspector, who has one month to approve them (articles L.65 and L.66). They take effect twenty days after that approval (Labour Code, article L.68).
For a lawful suspension, follow this order:
- Establish the facts: date, place, witnesses and, for Seydou, the three reports of working without a harness.
- Apply the procedure set by the collective agreement and the internal rules, for example a written request for explanation with a deadline to reply.
- Choose a duration proportionate to the seriousness of the breach, within the eight-day limit.
- Notify the decision in writing, with the facts alleged, the duration and the dates of the suspension.
- Record the absence on the payslip and in the payment register, which breaks absences down by cause (article L.107).
The procedure is covered in detail in Disciplinary procedures.
The most common mistake: internal rules never approved
Internal rules that were drafted but never sent to the labour inspector have not taken effect. A scale of sanctions that exists only in that document is hard to defend in court.
A closer look: leave and seniority bonus
The Code lists the absences treated as work time when calculating annual leave (article L.149) and those that may not be deducted from attendance time for the seniority bonus (article L.97). Suspension appears in neither list. Check what your collective agreement provides before calculating these entitlements.
A sanction written down nowhere is hard to defend.
What you need to do
- Have your internal rules approved by the labour inspector and post them at the workplace.
- Notify every suspension in writing, with the facts, duration and dates.
- Apply the same sanction to the same breaches, for all employees.
Key takeaways in 6 points
- Never impose more than eight days of suspension: the ceiling is set by the Code and overrides all internal texts.
- Do not pay for days of suspension, but never deduct a sum as punishment: fines are prohibited and a criminal offence.
- Distinguish disciplinary suspension, which punishes, from interim suspension, which awaits a decision.
- Obtain the labour inspector's authorisation before dismissing a protected employee: without it, the interim suspension falls away and the dismissal is void.
- Write the scale of sanctions into internal rules that have been approved and are in force.
- Establish the facts, follow the procedure and notify the decision in writing before any suspension.