Employment law
Dismissal for poor performance: legitimate grounds that must be proven
At Djenné Informatique, the project tracking board shows two red lines: a bank's network delivered six weeks late, then a client lost. Both projects were led by Salif, an excellent technician promoted to project manager eight months ago. The manager wants to dismiss him "for poor performance". Before writing the letter, he must be able to prove that poor performance, and check that it is not first and foremost a failure of the organisation.
Djenné Informatique is an IT services company with 30 employees, based in Bamako. Salif has worked there for six years; he is classified as a supervisor and earns an average of XOF 400,000 a month. This company and the people mentioned are fictitious: their names are used for illustration only.
1. What exactly are we talking about?
Poor performance (insuffisance professionnelle) is an employee's inability to perform their work properly despite the resources provided, without any ill will on their part. It is not misconduct: the employee cannot manage it, he is not refusing to do it.
The Labour Code does not define poor performance. It requires every dismissal to rest on legitimate grounds, meaning a real and accurate reason. If the dismissal is disputed, the employer must prove those grounds, and a dismissal without legitimate grounds or based on inaccurate reasons is unfair (Labour Code, article L.51).
| Point | Poor performance | Misconduct |
|---|---|---|
| What is at issue | The employee cannot manage it | The employee deliberately refuses or neglects |
| What must be proven | Objective gaps, despite the resources provided | Dated acts of misconduct |
| Notice and severance pay | Due (L.41 and L.53) | Due, except for gross misconduct (L.41 and L.53) |
| Disciplinary sanctions | No: it is not misconduct | Possible, under the internal rules (L.64) |
The trap of imported vocabulary
Many templates refer to a "real and serious cause", a "disciplinary procedure" or a compulsory "pre-dismissal meeting". These concepts come from French law. The Malian Code refers to legitimate grounds, does not provide for a pre-dismissal meeting and only allows notice and severance pay to be withheld for gross misconduct.
Poor performance is observed and proven. It is not sanctioned like misconduct.
2. Four questions to ask before taking any step
In a dispute, the court establishes unfairness by examining the causes and circumstances of the termination (L.51). The following four questions do not appear in the Code, but they are the ones that decide whether the grounds will hold.
| Question | What to check | At Djenné Informatique |
|---|---|---|
| Competence | Does the employee have the skills needed for the post as actually held? | Salif is an experienced technician, but has never been trained in project management |
| Tasks | Do the tasks in question fall within his job and qualifications? | Yes, since his promotion |
| Adjustment period | Has he had a reasonable time to adapt? | Eight months, for two difficult projects |
| Resources | Did he have the necessary tools, information and team? | His team lost two developers mid-project |
The most common mistake
Overlooking the fourth question. Blaming an employee for a result when he lacked the necessary tools, information or team means blaming him for a failure of the organisation. At Djenné Informatique, dismissing Salif would be premature. To analyse the causes of poor results, see Poor performance: analyse before you sanction.
What you need to do
- Answer the four questions in writing before any decision.
- Identify missing resources and provide them before concluding that performance is poor.
- Give the employee a realistic adjustment period, especially after a promotion.
3. The benchmark: the job actually entrusted
Poor performance is assessed against the employee's job, qualifications and level of responsibility. The job held is one of the essential terms of the contract: the Code lists it among the substantial terms, alongside pay, working conditions and place of work (Labour Code, article L.58).
Two practical consequences follow. The same gap is not judged the same way for an experienced manager and for a newly promoted employee. And giving an employee tasks beyond his qualifications does not create poor performance, but a mismatch caused by the employer.
Another way out: offering a return to the previous post
Rather than dismissing Salif, Djenné Informatique can offer him the chance to become a technician again. Changing his job is a substantial change to the contract (L.58):
- the offer is made in writing and Salif may refuse it;
- if he accepts, the change only takes effect after a period equal to the notice period, up to a maximum of one month;
- if he refuses, the employer may terminate the contract, but the termination is attributable to it and follows the dismissal procedure; it is only unfair if the offer was intended to cause harm or was reckless.
For the rules on changing the contract, see Open-ended contract: probation, changes and termination.
What you need to do
- Compare the tasks in question with the job and category stated in the contract and on the payslip.
- Consider a return to the previous post before dismissal, offering it in writing.
- Respect the period before an accepted change takes effect, up to one month.
4. Building the file
Poor performance is demonstrated by objective evidence, never by a general impression. This is what holds up before a judge:
- written, measurable objectives known to the employee;
- recorded gaps, dated and quantified where possible;
- a record of the resources provided: tools, training, support, information;
- previous exchanges: written warnings, meeting records;
- the adjustment period granted, and what happened during it.
This is what does not hold up: "he is not satisfactory", "his work leaves a lot to be desired", "he is not up to the job". These phrases describe an impression, not a verifiable fact. Yet it is the employer who must prove the grounds (L.51).
If training is decided, set it out in writing, with its objectives, duration and pay during the training (Labour Code, article L.9).
What you need to do
- Set the employee written, measurable objectives.
- Date and quantify every gap observed.
- Keep proof of every resource provided: training, tools, extra staff.
5. The procedure set by the Code
| Step | What to do | Basis |
|---|---|---|
| Warn and support | Report the gap in writing, set an objective and a deadline, provide the resources | Recommended practice, useful as evidence (L.51) |
| Hear the employee | Gather and record his explanations | Recommended practice; check the collective agreement and internal rules |
| Notify the termination | In writing, stating the grounds and the notice period | L.41 and L.43 |
| Inform the labour inspector | Registered letter stating the grounds; opinion within 15 days | L.40 |
| Staff delegate | Obtain the inspector's prior authorisation | L.277 |
| Settle the account | Pay as soon as work ends and hand over the certificate of employment | L.103 and L.61 |
The employer informs the competent labour inspector by registered letter, giving details of the employee and employer and the grounds for dismissal (Labour Code, article L.40). On assistance for the employee at a discussion before the decision, see Dismissal: the presence of the employee's lawyer.
What a rushed procedure costs
A justified dismissal notified without a letter or without grounds gives rise to compensation of up to one month's gross salary (Labour Code, article L.52). Failing to inform the inspector is punishable by a fine of XOF 10,000 to 50,000 (article L.316).
What you need to do
- Notify the dismissal in writing, stating the precise grounds and the length of notice.
- Send the labour inspector a registered letter stating the grounds.
- First check whether the employee is a staff delegate, a candidate or a former delegate within the last six months.
6. The dismissed employee's rights
Since poor performance is not misconduct, the employee keeps all his termination rights:
- the notice for his category, or the payment in lieu (Labour Code, articles L.41 and L.42);
- severance pay, from one year of continuous service (Labour Code, article L.53);
- payment in lieu of paid leave (article L.162);
- the certificate of employment (article L.61).
Example. Djenné Informatique eventually dismisses Salif, a supervisor, after six years' service and an average remuneration of XOF 400,000.
Two months' notice: 400,000 × 2 = XOF 800,000
Severance pay, first 5 years: 400,000 × 5 × 20% = XOF 400,000
Severance pay, 6th year: 400,000 × 1 × 25% = XOF 100,000
Total, excluding paid leave: XOF 1,300,000
For details of these rights, see Ending an open-ended contract: what rights for the worker?.
7. Costly mistakes
| Mistake | Why it weakens the dismissal | Consequence |
|---|---|---|
| Treating poor performance as gross misconduct | No deliberate wrongdoing is involved | Notice and severance become due again, and damages are possible (L.51 and L.53) |
| Dismissing without a warning or support | The grounds look premature or inaccurate | Dismissal found unfair (L.51) |
| Blaming tasks outside the job | It is not the job he was hired for | Grounds not legitimate (L.51) |
| Relying on general impressions | No verifiable fact | Grounds impossible to prove (L.51) |
| Omitting the written letter or the grounds | Procedural irregularity | Up to one month's gross salary (L.52) |
A closer look: mutually agreed termination, a negotiated exit
When the employer and the employee agree that the post is no longer suitable, the Code has offered another route since Law No. 2017-021 of 12 June 2017: mutually agreed termination, meaning the termination of an open-ended contract decided by mutual agreement (Labour Code, article L.50 bis).
- It may be proposed by the employer or the employee, and is recorded in a freely signed agreement.
- The employee must not be put under any pressure; he may be assisted during the meeting by a staff delegate or another employee of the company.
- The departure payment may never be lower than statutory severance pay.
- The termination takes effect on the date set in the agreement, without notice.
- A copy of the agreement is sent to the labour inspectorate, which settles disputes by arbitration. If consent was vitiated, the termination is void.
For Salif, the departure payment should therefore reach at least XOF 500,000, the amount of his statutory severance pay.
Key takeaways in 6 points
- Base the dismissal on legitimate and accurate grounds that you can prove.
- Check competence, tasks, the adjustment period and the resources provided before concluding that performance is poor.
- Consider a return to the previous post, offered in writing, before dismissing a recently promoted employee.
- Build a file made up of written objectives, dated gaps and documented resources.
- Notify the termination in writing with its grounds and inform the labour inspector by registered letter.
- Pay notice and severance: poor performance is not misconduct.