Employment law
Characterising the fault: what the Malian Code recognises, and what it ignores
At Atelier Ségou Métal, a welder was found asleep in the overhead-crane cab at two in the afternoon, the machine still live. The manager wants to dismiss him “for serious misconduct”, without notice, and to hold on to his final pay until a possible court case is over. Three decisions sit in that sentence. All three are wrong, and each one costs something.
Atelier Ségou Métal and the people named here are fictional. They serve only as an example throughout this article.
1. What the Code actually recognises
Every breach of discipline is a fault, and every fault may lead to a sanction proportionate to its seriousness or its repetition. So far, nothing controversial. The mistakes begin when the fault has to be named.
The Malian Labour Code uses a single characterisation: gross misconduct. It appears in connection with early termination of a fixed-term contract, notice, severance pay, transport costs, strikes and the dismissal of a staff delegate. And each time the Code adds the same reservation: it is left to the assessment of the competent court (Labour Code, articles L.41 and L.53).
It defines it nowhere. Nor does it say what a “simple fault” or a “serious misconduct” is: those two notions, and the three-tier structure organising them, come from French law. Importing them into Mali means building an argument on a category the Malian court will not have to apply.
In practice, therefore, there are only two regimes.
| Characterisation | What happens on termination |
|---|---|
| Ordinary breach, even serious, even repeated | Dismissal is possible if it rests on a legitimate ground. Notice, severance pay and accrued rights remain due |
| Gross misconduct, as found by the court | Termination may occur without notice and severance pay is not owed. Rights already accrued remain due |
The Malian Code knows one characterisation: gross misconduct. And it entrusts the assessment to the court, not to the employer.
2. How seriousness is measured
The seriousness of a fault cannot be read from the act alone. It is assessed in the light of the circumstances in which it was committed and the nature of the worker’s duties. Six factors almost always weigh.
- The nature of the post and the level of responsibility it carries.
- The safety rule at stake, where there is one.
- The harm caused to the company, a client or a colleague.
- Repetition of the same breach, and how recent the prior records are.
- Seniority and the worker’s earlier conduct.
- The immediate context: instructions received, urgency, that day’s working conditions.
The same act, two levels of seriousness
Sleeping on duty illustrates the mechanism well. An administrative clerk caught dozing at his desk after a night on call commits a real breach, but a harmless one. The Atelier Ségou Métal welder asleep in a live overhead-crane cab puts the safety of the whole workshop at stake. Same act, same word for it, two levels of seriousness with nothing in common.
One point is often forgotten: the absence of harm does not erase the fault. A breach of a safety rule that caused no accident is still a breach of a safety rule. Harm aggravates; its absence does not excuse.
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3. Gross misconduct: what it removes, what it never removes
This is where the most widespread error sits. One often reads that gross misconduct “deprives the employee of all payments”. That is false, and the distinction is easy to hold.
| What gross misconduct removes | What it never removes |
|---|---|
| The right to notice, and therefore the payment in lieu | Pay for the days actually worked |
| Severance pay | Payment for holiday accrued and not taken |
| For a fixed-term contract, protection against early termination | The certificate of employment, handed over on final departure |
| Part of the transport costs, in proportion to length of service | The right to challenge the termination before the labour court |
One reservation the Code repeats and dismissal letters forget: gross misconduct is left to the assessment of the competent court. An employer invoking it does not establish it, he proposes it. If the court rejects it, the company owes the notice, the severance pay, and damages for wrongful termination. The calculation of those sums appears in Ending an open-ended contract: what the company really owes.
4. Final pay cannot be withheld
The second error is costlier still: believing accrued rights can be held back pending a court decision. The Code says exactly the opposite. Where the contract ends or is terminated, salary and payments must be settled as soon as the service ends (Labour Code, article L.103).
Only one route allows a payment to be held, and it runs through a judge. In a dispute, the employer may obtain from the president of the labour court an order depositing, with the court registry, all or part of the attachable portion of the sums owed. Three limits sit in that sentence: it takes an order from the president of the court, the deposit goes to the court and not into the company’s account, and it covers only the attachable portion.
Example. The Atelier Ségou Métal welder earns XOF 200,000 a month. He is dismissed for gross misconduct on the 15th, ten months after returning from his last leave.
- Pay for days worked: 200,000 × 15 ÷ 30 = XOF 100,000.
- Remuneration received since the last leave: 10 × 200,000 = XOF 2,000,000.
- Holiday payment, at one twelfth of that remuneration: 2,000,000 ÷ 12 = XOF 166,667.
- Total payable on the day of departure, gross misconduct or not: XOF 266,667.
What gross misconduct removes, in this example, is the month of notice and the severance pay. Nothing else (Labour Code, articles L.61 and L.162).
Gross misconduct removes termination payments. It does not turn wages already earned into a deposit.
5. Precautionary suspension does not exist for everyone
The third error. One frequently reads that, faced with serious misconduct, “the employer must impose an immediate precautionary suspension”. In Mali the Code provides for that provisional, immediate suspension pending a decision in one case only: the staff delegate whose dismissal for gross misconduct is contemplated, pending the labour inspector’s decision. If authorisation is refused, that suspension is deprived of all effect (Labour Code, article L.277).
For every other worker, suspension from duty is a sanction, which suspends the contract and may not exceed eight days (Labour Code, article L.34). It is not an open-ended holding measure.
So what do you do when it is urgent?
Removing a worker from a dangerous post immediately is legitimate and often necessary. But it is done within the legal framework: a temporary assignment away from the hazardous post, with no loss of pay, or a suspension imposed within the eight-day limit while the facts are gathered and the decision taken.
One last received idea to set aside: that granting notice would “requalify” gross misconduct. That mechanism belongs to French law. In Mali, seriousness is assessed by the court on the facts; granting notice carries no automatic requalification.
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6. What the internal rules may list
The list of wrongful conduct does not belong in a stray note: it belongs to the discipline section of the internal rules, and it is written as observable facts (Labour Code, article L.64). Here are the entries most often found in workshops and industrial sites.
- Bringing in or consuming alcoholic drinks on the premises.
- Bringing in toxic or prohibited substances.
- Reporting for work in a state of intoxication.
- Sleeping on duty.
- Leaving one’s post without authorisation.
- Using company equipment or vehicles without authorisation.
- Carrying on activities unrelated to the service during working hours.
- Smoking outside the authorised areas.
- Not wearing the protective equipment provided.
Two entries to handle with care
“Refusing overtime or an assignment.” The wording holds only for overtime lawfully ordered within the statutory framework, and for assignments falling within the job held. An assignment that would lastingly change the place of work or the job is not an instruction: it is a proposal to change the contract, which the worker may refuse (Labour Code, article L.58).
“Disturbing the social climate.” This formula is too vague to ground a sanction, and it is dangerous: it can sweep in union activity or the voicing of a grievance, both of which are protected. The employer is forbidden to take account of union membership or the exercise of union activity when taking decisions on discipline, and a measure taken in breach of that rule is wrongful. Better to target precise facts: insults, violence, incitement to damage equipment.
On building the scale itself and on the procedure to follow before sanctioning, see The scale of sanctions and Disciplinary power.
A closer look: gross misconduct and the fixed-term contract
For a fixed-term contract, characterisation does not merely open a debate about payments: it decides whether termination was possible at all. A fixed-term contract may be ended before its term only for gross misconduct, by agreement of the parties recorded in writing, or through force majeure.
Where the employer disregards that rule, the worker is entitled to damages equal to the remuneration he would have received up to the end of the contract.
Example. A boilermaker is engaged for eight months at XOF 150,000 a month. The company ends his contract at the end of the third month, with no gross misconduct found.
- Months left to run: 8 − 3 = 5.
- Damages: 5 × 150,000 = XOF 750,000.
The full regime for early termination is set out in Ending a fixed-term contract for misconduct in Mali.
Key takeaways in 6 points
- Drop the simple / serious / gross three-tier structure: the Malian Code knows only gross misconduct.
- Assess seriousness by the post, the rule breached, the harm and the repetition, never by the act alone.
- Remember that gross misconduct removes notice and severance pay, and nothing else.
- Pay wages and accrued holiday as soon as the service ends: only the court president may order a deposit.
- Do not improvise a precautionary suspension: eight days maximum, with a special regime for delegates.
- List wrongful conduct in the internal rules, as precise facts, with no catch-all wording.