Employment law
Disciplinary measures: Fairness and justice
In Mopti, two receptionists at Mopti Hôtel Services made the same till error a week apart. The first received a written warning. The second, three days’ suspension from duty. Nothing in either file explains the gap, except one detail: the second had just been elected a staff delegate. Before the labour court, it is that gap that will be examined, not the till error.
Mopti Hôtel Services and the people named here are fictional. They serve only as an example throughout this article.
1. Two requirements, not one
Disciplinary power is often reduced to a question of severity: is the sanction too harsh, too light? In reality the validity of a sanction is decided on two separate grounds, and a company can perfectly well win on one and lose on the other.
Fairness means a written rule exists and was known to the worker before the facts. Without it, the sanction punishes conduct that had never been defined as wrongful.
Even-handedness means applying that rule to the same facts in the same way, whoever is concerned. Without it, the sanction stops being a measure of order and becomes a measure aimed at someone.
Fairness is the rule written before the facts. Even-handedness is the same rule for everyone.
2. Fairness: a rule that can be known before the facts
The company’s disciplinary rule has a single vehicle: the internal rules, which set the rules of discipline and the scale of applicable sanctions. They must exist. And they must be enforceable: they are posted in the hiring premises and at the workplaces, in a suitable, easily accessible spot, and kept constantly legible (Labour Code, articles L.64 and L.67).
And they take effect only twenty days after the labour inspector’s stamp. A sanction imposed before that point rests on a text that does not yet exist.
Three questions make it possible to check, in two minutes, that the first ground is held.
- Are the internal rules stamped by the labour inspector, and have more than twenty days passed since?
- Are they posted at the hiring premises and workplaces, and legible?
- Is the alleged conduct described there as a breach, in precise terms?
If a single answer is no, the sanction rests on a fragile basis, whatever the reality of the facts. On drafting that part of the rules, see Internal rules.
| What you need to do |
|---|
|
3. Even-handedness: professional considerations only
A disciplinary decision may rest on professional considerations alone. The Code does not merely say so: it lists the prohibited considerations, and it punishes anyone who uses them.
| Permitted considerations | Prohibited considerations |
|---|---|
| The alleged facts and their date | Origin, colour, national extraction, social origin |
| The internal rule that was breached | Sex, family situation, age |
| The level of responsibility of the post | Religion and political opinions |
| Recent disciplinary records | Invalidity, disability, HIV and AIDS |
| The harm caused and the repetition | Union membership and union activity |
Discrimination is defined as any distinction, exclusion or preference based on those criteria which has the effect of destroying employment or impairing equality of opportunity or treatment (Labour Code, article L.4). Distinctions based on the qualifications required for a given job are not discrimination.
The Code’s most precise prohibition
Every employer is forbidden to take into account opinions, union membership or the exercise of union activity when taking decisions, in particular as regards disciplinary measures and dismissal. Any measure taken in breach of that rule is treated as wrongful and gives rise to damages (Labour Code, article L.257).
This is not merely a civil nullity. The offence is punishable by a fine of XOF 50,000 to 250,000 and imprisonment of 1 to 4 months, or by one of those two penalties. On a repeat offence the fine is XOF 500,000 to 1,000,000 and the imprisonment 8 months (Labour Code, article L.329).
4. What the Mopti Hôtel Services file reveals
Take the two receptionists again. Same facts, same post, same month, two different sanctions. The company wrote nothing to justify the gap.
Before the court, the sequence is mechanical. The worker produces both decisions. The employer must explain the difference by a professional consideration. If he has nothing to produce, the only visible difference between the two files becomes the most likely explanation: the staff-delegate mandate.
A protection specific to delegates is added on top. The labour inspector’s authorisation is required before any dismissal of a delegate, full member or substitute, and any dismissal in breach of that procedure is automatically void, the delegate being restored to his rights and reinstated (Labour Code, article L.277). Interfering with the regular exercise of a delegate’s functions is punishable by a fine of XOF 100,000 to 500,000 and imprisonment of one month to one year; on a repeat offence, imprisonment is always imposed.
| What you need to do |
|---|
|
5. Proportion: what is actually compared
Proportionality is not a feeling. It is checked by three comparisons, and a company that makes them before deciding rarely gets it wrong.
| Comparison | Question to ask |
|---|---|
| The facts and the sanction | Does the seriousness of the facts justify this step of the scale, given the post and the harm? |
| The sanction and the written scale | Does this step actually appear in the internal rules, and does the suspension stay under eight days? |
| The sanction and the precedents | Have comparable facts received a comparable sanction in recent months? |
The third comparison is the one companies most often skip, and the one that most easily turns against them: an isolated file can be defended, an inconsistent series cannot. On building the scale and characterising the facts, see The scale of sanctions and Characterising the fault.
6. What the court reviews, and who must prove what
The allocation of the burden of proof surprises many managers. It does not favour them, and that is the whole reason for keeping a written file.
| What the employer must prove | What the worker brings |
|---|---|
| The existence of a legitimate ground for dismissal, where it is disputed | The challenge itself and the facts he relies on |
| The economic ground and compliance with the order of dismissals | Evidence establishing the harm suffered |
| Written notification of the notice and its ground | Comparable decisions taken in the company |
The court establishes the wrong by an inquiry into the causes and circumstances of the termination. Damages are set taking account of custom, the nature of the services engaged, seniority, the worker’s age and accrued rights. Those damages are separate from both the payment for unobserved notice and severance pay. Where the dismissal is lawful in substance but lacks written notification or a stated ground, the court awards a payment that may not exceed one month of gross salary (Labour Code, articles L.51 and L.52).
The worker’s route, and what it costs him
It is shorter and cheaper than people imagine. The worker first asks the labour inspector to settle the dispute amicably; the request suspends the limitation period as soon as it is received. If that fails, the labour court is seised by a simple declaration to the registry. The procedure is free of charge, and the worker has legal aid for enforcing judgments given in his favour. The judgment may also order immediate enforcement, notwithstanding appeal, of up to 50 % of the sums claimed as wages, accessories, allowances and entitlements, damages being excluded (Labour Code, articles L.190, L.202 and L.211).
One last figure is worth knowing: labour court judgments are final and not subject to appeal where the amount claimed does not exceed twelve times the guaranteed minimum wage. With a monthly minimum of XOF 40,000 in the first grade, that is XOF 480,000. Below that threshold, the first-instance decision is the last one.
7. What an unfair sanction costs
Example. The receptionist who is a staff delegate, four years’ seniority, average monthly pay of XOF 175,000, paid monthly, is ultimately dismissed. The court finds the termination wrongful and notes an irregularity of form.
- Payment in lieu of notice: 1 month, i.e. XOF 175,000.
- Severance pay: 4 × 20 % = 80 % × 175,000 = XOF 140,000.
- Payment for irregularity of form: at most 1 month of gross salary, i.e. XOF 175,000.
- Subtotal: XOF 490,000, before damages for wrongful termination, assessed by the court.
Added to that, if the union ground is upheld, a fine of XOF 50,000 to 250,000 and imprisonment of 1 to 4 months, and, if the dismissal was imposed without the labour inspector’s authorisation, automatic nullity with reinstatement.
Against that total, the cost of a well-kept file, a request for explanation, a reasoned notification, one written line justifying the gap with a comparable case, is measured in minutes. On handling that file, see Disciplinary power.
A closer look: equal treatment is not uniformity
Even-handedness does not require identical sanctions in situations that are not identical. Two workers may commit the same act and receive two different sanctions, on one condition: that the difference rests on a professional consideration, and that it is written down.
Three differences are objective and justify themselves without difficulty: the level of responsibility of the post, recent disciplinary records, and the concrete consequences of the act at that particular post. A cashier and a cleaner who commit the same negligence around a till are not in the same professional situation.
What is prohibited is the difference that rests on nothing demonstrable, or on a prohibited ground. The test is simple: if the reason for the gap cannot be written in one sentence in the file, it will not be explainable before the court.
Key takeaways in 6 points
- Check that the internal rules are stamped, posted and in force before opening a disciplinary file.
- Base the decision on professional considerations alone, never on an opinion, a membership or a mandate.
- Compare the contemplated sanction with those imposed in recent months for similar facts.
- Write into the file the professional reason for any difference in treatment.
- Remember that where the dismissal is disputed, it is for the employer to prove the legitimate ground.
- Handle files involving delegates, candidates and former delegates with the labour inspector’s prior authorisation.