Changing pay, job or workplace: what if the employee refuses? Propose, never impose

Baobab Distribution is closing its Ségou depot. The managing director wants to bring Moussa, a storekeeper for seven years, back to Bamako, and to cut the fixed part of two sales reps’ pay. He posts a staff memo: “with effect from the 1st of the month”. Moussa refuses to move, the sales reps refuse the cut. The director thinks he has a case of misconduct. What he actually has is a dismissal, with its notice, its severance pay and sometimes its economic procedure.

1. What exactly are we talking about?

Baobab Distribution is a fictitious pharmaceutical distribution company with 32 employees, a head office in Bamako and a depot in Ségou: its name and situation are used purely as an example.

Changing the contract means changing what both parties agreed. The Code allows it, but as a proposal: employer and employee alike may, during the contract, propose a change to it (Labour Code, article L.58).

Everything turns on one word: substantial. A substantial term is one without which the worker would not have signed. The Code gives four examples: pay, working conditions, place of work and the job held (article L.58).

Why this protection? Because the employee committed to a salary, a job and a place. Changing them without consent means imposing a contract other than the one the employee signed.

“The employer proposes, the employee decides. Refusal is not misconduct.”

2. Substantial or not: where is the line?

Not every change is a substantial modification. The employee works “under the direction and authority” of the employer (article L.13): organising day-to-day tasks is part of that authority. To decide, one question is enough: would the employee have signed without this term?

Change envisaged	Substantial?	Why
Cutting fixed pay or removing a bonus provided for in thecontract	Yes	Pay is named by the Code
Transferring Moussa from Ségou to Bamako	Yes, in principle	Place of work is named by the Code, and a change of town upends theemployee’s life
Moving Moussa from storekeeper to delivery driver	Yes	The job held is named by the Code
Moving Moussa to another aisle in the same depot	No, generally	Same job, same place: this is work organisation
Shifting working hours by one hour	Case by case	Working conditions are named; it depends on the impact and on thecontract

In a dispute, the judge decides case by case. The safest course is to treat as substantial any change affecting one of the four elements named by the Code. See also Open-ended contract: probation, modification and termination.

The most common mistake

Announcing a modification by a simple staff memo. A memo informs; it does not amount to the employee’s consent. A substantial modification requires a proposal, then an answer.

What you need to do

• Check whether the change affects pay, working conditions, place of work or the job.
• Reread the contract: applying a term already agreed, such as a list of possible work locations, is not a modification.
• Make the proposal in writing, explaining the reason and the intended date.

3. The employee accepts: a waiting period before it takes effect

If the employee accepts, the modification only takes effect after a period equal to the length of their notice, up to a maximum of one month (article L.58). In the absence of a collective agreement, notice is 8 days for staff paid by the day or week and one month for monthly-paid employees (Labour Code, article L.41). Moussa’s transfer, accepted on 5 March, would therefore apply on 5 April at the earliest.

Why this period? To give the employee time to get organised: move house, change habits, or look for another job.

The most common mistake

Applying the pay cut as soon as it is signed. Even once accepted, it waits until the period ends; paying less before then means paying less than is owed.

What you need to do

• Have a dated amendment signed that describes the modification precisely.
• Set the effective date after the period equal to notice, without exceeding one month.
• Keep the signed original in the employee’s file.

4. The employee refuses: keep the contract or dismiss

Refusing a substantial modification is not misconduct. The employer has two options: drop the idea and keep the contract as it is, or terminate. If it terminates, the termination is attributable to the employer and must follow the dismissal procedure (article L.58).

In practice: a registered letter to the labour inspector stating the reason, who has fifteen days to give an opinion (Labour Code, article L.40); notice given in writing, including the reason (article L.41); severance pay if the employee has at least one year’s service (Labour Code, article L.53); accrued leave.

When the reason is economic

If the modification stems from economic difficulties or technological change, a dismissal following a refusal is an economic dismissal (Labour Code, article L.46). Added to it are consultation of staff delegates, the order of dismissals, a special payment of one month’s gross salary and a two-year re-hiring priority (articles L.47 and L.48). See Economic dismissal.

When the dismissal becomes unfair

A dismissal following a refusal is only unfair if the proposal stemmed from an intention to harm or from culpable recklessness (article L.58). A transfer proposed to push an employee out, a pay cut with no serious reason: the judge may then award damages on top of the statutory payments (Labour Code, article L.51).

Example. Moussa refuses the transfer. Average gross salary over the last twelve months: 180,000 XOF, 7 years’ service, depot closed for economic difficulties:

One month’s notice (monthly-paid employee): 180,000 XOF
Severance pay, first 5 years: 180,000 × 20% × 5 = 180,000 XOF
Years 6 and 7: 180,000 × 25% × 2 = 90,000 XOF
Special economic payment: 180,000 XOF
Total: 180,000 + 180,000 + 90,000 + 180,000 = 630,000 XOF,
excluding accrued leave

What you need to do

• Accept the refusal without any penalty: it is not misconduct.
• If termination is unavoidable, follow the full dismissal procedure, the economic one if the reason is economic.
• Document the serious reason for the proposal, to rule out any abuse.

5. When the employee is the one asking

The rule works both ways. If the employee proposes a substantial modification, for example a job closer to home, and the employer refuses, the employee may terminate the contract, but the termination is attributable to the employee (article L.58). The employee takes the initiative, with the corresponding notice.

Reply in writing to any such request: a written, reasoned refusal makes clear who took the initiative to terminate, if termination follows.

A closer look: what Malian law does not adopt

Many articles modelled on French law distinguish a “modification of the contract”, which the employee may refuse, from a mere “change in working conditions”, which the employer could impose and whose refusal would be misconduct. The Malian Code does not reason this way: it expressly lists “working conditions” among the substantial elements (article L.58). Likewise, the one-month reflection period required in France before an economic modification does not exist in Mali: the Malian period applies after acceptance, and is capped at one month.

Another confusion: the sale or merger of the company. A change of employer does not modify the contract: contracts continue with the new employer (article L.57). See Company sold or merged: what happens to employment contracts? And no modification may take pay below the legal minimum: see What is the minimum wage (SMIG) in Mali?

Key takeaways in 6 points

1. Treat as substantial any change to pay, working conditions, place of work or job.
2. Propose the modification in writing, never impose it by staff memo.
3. Have an amendment signed and only apply the modification after a period equal to notice, one month at most.
4. Never penalise a refusal: it is not misconduct.
5. If the refusal leads to termination, follow the dismissal procedure, the economic one if the reason is economic.
6. Justify every proposal with a serious reason, to rule out abuse.