Employment law
Disciplinary power: where it comes from, how far it goes
At Diarra Transit, a customs broker in Bamako, a clearing agent let a tariff-code error slip through. Three days of demurrage on a container, a penalty for the client. On Monday the manager sends him a sharp letter. On Thursday he decides to dismiss him for the same error. In four days he has made two procedural mistakes, and the second will cost him more than the agent’s error.
Diarra Transit and the people named here are fictional. They serve only as an example throughout this article.
1. Where does the power to sanction come from?
Disciplinary power is the employer’s right to sanction a worker’s failure to meet his professional obligations. That right exists, but it is not free: it has a written source, and that source is not the one people assume.
The Malian Labour Code sets up no general disciplinary procedure. It draws up no list of sanctions, sets no deadline and imposes no formality for sanctions other than dismissal. What it does is entrust the head of the company with setting the rules of discipline and the scale of applicable sanctions in the internal rules (Labour Code, article L.64).
It then lays down three limits, and they are mandatory: suspension from duty may not exceed eight days, fines are forbidden, and no deduction may be made from remuneration other than those the law provides (Labour Code, articles L.34, L.69 and L.121).
The consequence that is poorly measured
Without internal rules properly stamped and posted, the employer sanctions on a fragile basis: he applies a rule the worker was not bound to know. That is the first reflex to have before discussing any sanction, check that the text grounding it exists and is in force. On this point, see Internal rules.
The Code does not draw up the scale of sanctions. It charges the internal rules with writing it, and sets limits around it.
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2. The sanctions the company may impose
The scale used by most internal rules has four steps. Each has a different effect on the contract of employment.
| Sanction | Effect on the contract | Limit |
|---|---|---|
| Warning | None: a written call to order, placed on file | Still a sanction, and exhausts disciplinary power over the facts it covers |
| Reprimand | None: a more serious written sanction, placed on file | Same exhausting effect over the facts it covers |
| Suspension from duty | Suspends the contract, and therefore both work and pay | Eight days at most |
| Termination of contract | Ends the contract | Statutory dismissal regime, procedure included |
The nuance that avoids a costly mistake
During a suspension from duty the worker is not paid. That is not a deduction from wages: it is the mechanical consequence of the contract being suspended, which the Code expressly provides for. By contrast, deciding to “hold back a day’s pay” without suspending the contract, as a punishment, is a disguised fine, and fines are forbidden.
3. The four measures taken for sanctions that are not sanctions
It is always the same four that come back in companies, and always the same four that fall in court.
| Measure | Why it does not hold |
|---|---|
| Fine or financial penalty | Expressly forbidden to the employer, whatever it is called |
| Deduction from wages to repair damage | Set-off is possible only within the attachable portion, and only once properly established |
| Demotion | It touches the job held and the pay: a substantial change to the contract, which is proposed and cannot be imposed |
| Punitive transfer to another site | The place of work is a substantial term: same regime as demotion |
The last two deserve an explanation. Substantial means any term without which the worker would not have contracted, and the Code expressly names pay, working conditions, the place of work and the job held. If the employer proposes such a change and the worker refuses it, the employer may end the contract, but the termination is attributable to him and must follow the dismissal procedure (Labour Code, article L.58).
In other words, demoting a worker without his consent does not sanction him: it opens the way to a termination attributable to the company, with everything that costs.
A sanction that changes the contract is no longer a sanction: it is a proposal the worker may refuse.
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4. One fault, one sanction
The same facts are not sanctioned twice. The first measure taken exhausts the employer’s disciplinary power over those facts.
That rule has a consequence many managers discover too late: a written letter of reproach is already a sanction. It does not matter that it never uses the word “warning”. Once it reproaches specific conduct and is placed on file, it has consumed the ground.
Example. At Diarra Transit, the sequence runs as follows.
- Monday the 6th: a letter reproaching the agent for the tariff-code error. That is a sanction.
- Thursday the 9th: dismissal notified for that same error. The ground is already exhausted.
- The dismissal therefore rests on a consumed ground: the worker will challenge it before the court, and the company will have to prove a separate legitimate ground.
The exception: the fault that continues
A second sanction remains possible where the wrongful conduct continues after the first measure. It then sanctions not the same facts but new, later ones. Repetition is what grounds the escalation, and that is why the date of each breach must be recorded.
The vocabulary to correct
One often reads that a dismissal in these circumstances is “without real and serious cause”. That formula comes from French law. In Mali the Code speaks of wrongful termination: termination is wrongful in particular where the dismissal is made with no legitimate ground or where the stated ground is inaccurate, and the court establishes the wrong by an inquiry into the causes and circumstances (Labour Code, articles L.51 and L.52).
On assessing the seriousness of a breach before choosing the sanction, see Disciplinary sanctions: characterising the fault.
5. Never sanction in anger
It is the most banal and the most useful piece of advice. It has a precise legal translation: a decision taken in the heat of the moment almost always produces one of the two defects that lose a case.
The first defect: writing before thinking. The letter drafted that same evening consumes the ground, as we have just seen. Better to record the facts in an internal note, with no formal reproach, and then decide.
The second defect: skipping the dismissal steps. Any employer intending to dismiss must inform the district labour inspector by registered letter stating the worker’s identity, the employer’s identity and the ground. The inspector has fifteen days to issue an opinion. A worker who challenges it may bring the matter before the labour court, and that appeal suspends the employer’s decision.
Notice is then given in writing, and the letter must state the ground. It is for the party ending the contract to prove that notification was given (Labour Code, articles L.40, L.41 and L.43).
Sanctioning too late raises the opposite problem: facts left without reaction for weeks look tolerated, and the ground weakens. Between haste and forgetfulness, the useful interval is counted in days, the time needed to establish the facts and let the worker explain himself.
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6. The particular case of the staff delegate
A staff delegate, full member or substitute, is not dismissed like any other worker. The labour inspector’s authorisation is required before any dismissal is contemplated. No reply within fifteen days of filing the request counts as authorisation, unless the inspector judges an expert assessment necessary: the period is then extended to thirty days, and he must inform the employer in writing before the first fifteen days expire (Labour Code, article L.277).
Any dismissal in breach of that procedure is automatically void: the delegate is restored to his rights and reinstated in the company. In the event of gross misconduct the employer may immediately impose a provisional suspension pending the decision; if authorisation is refused, that suspension is deprived of all effect.
The protection is broader than people think. It covers candidates for delegate posts between the posting of the lists and the ballot, elected delegates until the date of the new elections, and former delegates for six months after their term expires.
Interfering with the free designation of delegates or with the regular exercise of their functions is punishable by a fine of XOF 100,000 to 500,000 and imprisonment of one month to one year, or by one of those two penalties. On a repeat offence, imprisonment is always imposed (Labour Code, article L.331).
A closer look: what a badly imposed sanction costs
Putting figures on it helps to choose between the immediate sanction and the prepared one.
Example. A Diarra Transit clearing agent, six years’ seniority, average monthly pay of XOF 250,000, paid monthly, is dismissed for gross misconduct. The court rejects that characterisation.
- Payment in lieu of notice: 1 month, i.e. XOF 250,000.
- Severance pay: 5 × 20 % = 100 %, plus 1 × 25 % for the sixth year, i.e. 125 % × 250,000 = XOF 312,500.
- Total before damages: XOF 562,500.
- To which are added damages for wrongful termination, assessed by the court, and, where the form was irregular, a payment that may not exceed one month of gross salary.
The detailed calculation of these payments appears in Ending an open-ended contract: what the company really owes.
Key takeaways in 6 points
- Check that the internal rules are stamped and posted: they, not the Code, set the scale of sanctions.
- Stick to the four possible sanctions, and cap suspension from duty at eight days.
- Never impose a fine, a penalty or a disciplinary deduction, under any name whatsoever.
- Treat demotion and transfer as proposals to change the contract, never as sanctions.
- Sanction the same facts only once: a letter of reproach already counts as a sanction.
- Go to the labour inspector before any dismissal, and seek his prior authorisation for a staff delegate.