Labour Code [LC], dated 10 January 1997 last amended by Royal Kram No. 0707-020 of 20 July 2007
Date:20 Jul 2007;
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Trade Union Law, dated 17 May 2016
Date:17 May 2016;
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Prakas No. 99 on the Arbitration Council of 21 April 2004, MOSALVY
Date:21 Apr 2004;
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Size of enterprises excluded (≤): none
Sec. 2 LC
Workers' categories excluded: flight crew, civil/public servants, domestic workers, police, army, judiciary, seafarers
Sec. 1(a)-(e) LC
Apprentices are not excluded from the LL, however termination of apprenticeship contracts is regulated by specific provisions (Secs. 63-64 LC).
FTC regulated: Yes
Valid reasons for FTC use: no limitation
See Secs. 66 and 67 LC.
No limitation on the reasons for concluding a FTC (sec. 66). However, a labour contract signed with consent for a specific duration must contain a precise finishing date. Any violation of this rule leads the contract to become an indefinite labour contract (sec. 67).
Maximum number of successive FTCs: no limitation
Sec. 67, 5) LC: it can be renewed one or more times, as long as the renewal does not exceed the max. duration of 2 years.
Maximum cumulative duration of successive FTCs: 24month(s)
Sec. 67(8) LC: When a contract is signed for a fixed period of or less than two years, but the work tacitly and quietly continues after the end of the fixed period, the contract becomes a labor contract of undetermined duration (confirmed by the Arbitration Council).
Maximum probationary (trial) period (in months): 3 month(s)
Sec. 68 LC: the probationary period cannot exceed three months for regular employees, two months for specialized workers and one month for non specialized workers.
Obligation to provide reasons to the employee:
Yes
Sec. 74 LC.
Sec. 74 LC: no dismissal can take place without a valid reason relating to the worker's aptitude or behaviour, based on the requirements of the operation of the enterprise, establishment or group.
Sec. 83 LC on serious offences entailing summary dismissal :
1. Stealing, misappropriation, embezzlement;
2. Fraudulent acts committed at the time of signing (presentation of false documentation) or during employment (sabotage, refusal to comply with the terms of the employment contract, divulging
professional confidentiality).
3. Serious infractions of disciplinary, safety, and health regulations.
4. Threat, abusive language or assault against the employer or other workers.
5. Inciting other workers to commit serious offenses.
6. Political propaganda, activities or demonstrations in the establishment.
Sec. 12 LC (non-discrimination on the grounds of race, colour, sex, creed, religion, political opinion, birth, social origin, membership of workers’ union or the exercise of union activities); sec. 279 LC (union affiliation or activities); sec. 182 LC (maternity leave); sec. 333 LC (participation in a strike).
Sec. 293-295 LC
The dismissal of a shop steward or a candidate for shop steward can take place only after authorization from the Labor Inspector. Protection extended to former shop steward who relinquished their position for less than six months (sec. 282 LC).
Sec. 67 Trade Union Law
All workers who stand as candidates for elected leadership [and] management positions shall enjoy the same protection from victimization and dismissal as shop stewards. Such protection begins 45 (forty-five) days prior to the election and ends 45 (forty-five) days after the election if he or she is not elected. In order to enjoy such protection, the union shall notify the employer of the candidacy and submit a copy to the Ministry in charge of Labor, by any Unofficial Translation Page 25 of 39 certified means. The employer shall only be required to comply with these provisions once for each election of union leadership.
Sec. 182 LC: The employer is prohibited from laying off women during their maternity leave or at a date when the end of the notice period would fall during the maternity leave". This protection only applies during maternity leave and not the entire pregnancy.
Notification to the worker to be dismissed: written
Notice period:
1) For workers under a contract of unspecified duration:
Sec. 75 LC: The minimum period of a prior notice is set as follows:
- 7 days, if the worker's length of continuous service is less than six months;
- 15 days, if the worker's length of continuous service is from six months to two years;
- 1 month, if the worker's length of continuous service is longer than two years and up to five years.
- 2 months, if the worker's length of continuous service is longer than five years and up to ten years.
- 3 months, if the worker's length of continuous service is longer than ten years.
2) Specific rules apply to fixed term contracts:
Sec. 73 LC: A labor contract of specific duration normally terminates at the specified ending date. It can, however, be terminated before the ending date if both parties are in agreement on the condition that this agreement is made in form of writing in the presence of a Labor Inspector and signed by the two parties to the contract. If both parties do not agree, a contract of specified duration can be cancelled before its termination date only in the event of the serious misconduct or acts of God […] If the contract has a duration of more than six months, the worker must be informed of the expiration of the contract or of its non-renewal ten days in advance. This notice period is extended to fifteen days for contracts that have a duration of more than one year. If there is no prior notice, the contract shall be extended for a length of time equal to its initial duration or deemed as a contract of unspecified duration if its total length exceeds the time limit specified in sec. 67
tenure ≥ 6 months:
tenure ≥ 9 months:
tenure ≥ 2 years:
tenure ≥ 4 years:
tenure ≥ 5 years:
tenure ≥ 10 years:
tenure ≥ 20 years:
Pay in lieu of notice: Yes
Sec. 77 LC.
Notification to the public administration: Yes
Sec. 21 LC : compulsory written notification to the Ministry of Labour every time an employer hires or dismisses a worker.
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
Except for a shop steward or a candidate for a shop steward (sec.293 LC).
Approval by workers' representatives: No
Definition of collective dismissal (number of employees concerned): The Labour Code refers to mass lay-off resulting from a reduction in an establishment's activity or an internal reorganization but does not specify the number of employee concerned.
Sec. 95 LC
Prior consultations with trade unions (workers' representatives): Yes
Sec. 95 LC
Notification to the public administration: Yes
See Sec. 95 LC: notification to the Labour Inspector in the event of mass lay-off.
See also Sec. 21 LC: notification of every dismissal (not specific to collective dismissal)
Notification to workers' representatives: Yes
Sec. 95 LC
Approval by public administration or judicial bodies: No
No approval required. However, in exceptional cases, the Minister in charge of Labour can issue a ministerial order (Prakas) to suspend the lay off for a period not exceeding thirty days. The suspension may be repeated only one time by a Prakas of the Ministry (Sec. 95 LC).
Approval by workers' representatives: No
Priority rules for collective dismissals (social considerations, age, job tenure): Yes
Sec. 95 LC: The first workers to be laid off will be those with the least professional ability, then the workers with the least seniority. The seniority has to be increased by one year for a married worker and by an additional year for each dependent child.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes
Sec. 95 LC: The employer must solicit the worker's representatives for suggestions, primarily, on measures taken to minimize the effects of the reduction on the affected workers.
Priority rules for re-employment: Yes
Sec. 95 LC: The dismissed workers have, for two years, priority to be re-hired for the same position in the enterprise.
Severance pay:
Sec. 89 LC: Employers shall provide employees (workers) who are still working a seniority payment equal to 15 days per year of a sum of wages and other payments. Every six months, the employer shall pay the employee half of seniority bonus. If an Unfixed Duration Contract(UDC) is terminated by the employer according to the labour law, the employer is required to grant the employee/worker whose the remaining seniority period from 1 month to 6 months a seniority payment equals to 7 days of a sum of wage and other payments. In the case of labour contract is terminated by the serious misconduct of the worker/employee, the seniority payment is not granted. The employer has also to pay the seniority payment to the worker/employee if the worker is terminated for reasons of illness. The scope and form of the seniority payment’s implementation shall be determined by the Prakas of the Minister in charge of Labour.
Note that sec. 73 LC provides that at the expiration of a fixed-term contract (the end of the term or completion of the task), the employer must pay the employee severance pay which may be fixed by collective agreement but should not in any case be less than 5 per cent of the total wages paid during the length of the contract.
tenure ≥ 6 months: 7 day(s)
tenure ≥ 9 months: 7 day(s)
tenure ≥ 1 year: 15 day(s)
tenure ≥ 4 years: 60 day(s)
tenure ≥ 5 years: 75 day(s)
tenure ≥ 10 years: 150 day(s)
tenure ≥ 20 years: 6 month(s)
Redundancy payment:
No specific redundancy payment: same severance pay.
See Article 89 LC: If the worker is dismissed for a reason other than serious misconduct, the employer must pay an indemnity for dismissal. The amount of the indemnity depends upon the employee's length of continuous service:
- for employment from 6 to 12 months: 7 days wages and benefits;
- for employment over 1 year: 15 days wages and benefits for each year of employment, up to a maximum of six months' wages.
This only applies to contracts of an unspecified duration.
tenure ≥ 6 months: 7 day(s)
tenure ≥ 9 months: 7 day(s)
tenure ≥ 1 year: 15 day(s)
tenure ≥ 2 years: 30 day(s)
tenure ≥ 4 years: 60 day(s)
tenure ≥ 5 years: 75 day(s)
tenure ≥ 10 years: 150 day(s)
tenure ≥ 20 years: 6 month(s)
Compensation for unfair dismissal - free determination by court: Yes
Art. 94 LC: The amount of damages is fixed by the Court, in light of the local custom, the type and importance of the services rendered, the employee's seniority and age, any deductions or payments made to a retirement plan, and other circumstances establishing the existence and the extent of the harm incurred. Instead of providing proof of damages in court, the worker can ask for a lump sum payment equal in amount to the indemnity for dismissal (Art. 91 LC).
Reinstatement available: Yes
Art. 385 LC
Preliminary mandatory conciliation: No
Preliminary conciliation is only an option for individual disputes.
Art. 300 LC: Prior to any judicial action, an individual dispute can be referred for a preliminary conciliation, at the initiative of one of the parties, to the Labour Inspector of his province or municipality.
However, conciliation is mandatory for collective (interest and rights) disputes : art. 305 LC.
Competent court(s) / tribunal(s): labour court
See Article 387 LC: Labour courts shall be created that have jurisdiction over the individual disputes occurring between workers and employers regarding the execution of the labour contract or the apprenticeship contract.
However, labour courts have not been established yet. Pending the creation of those Courts, ordinary courts have jurisdiction over labour disputes pursuant to art. 389 LC.
Existing arbitration: Yes
Settlement by the Arbitration Council is compulsory when conciliation failed for collective disputes (rights and interest): art. 309 LC.
The arbitration council has developed a body of reliable jurisprudence on termination of employment.
http://www.arbitrationcouncil.org/eng_index.htm