Employment law
Misconduct in the company
At the oil mill, a press operator is found asleep at his post during the night shift. The next day, the team leader demands immediate dismissal "for serious misconduct", with no notice or severance pay. The phrase sounds right, but it does not appear in the Malian Labour Code. Choosing the wrong label means paying later what you thought you were saving.
Our fictional running case: Kafo Industries, a cottonseed oil mill in Koutiala with 90 employees working in three shifts.
1. What exactly are we talking about?
Misconduct is a failure by the employee to meet their obligations: those of the contract, of the employer’s instructions or of the internal rules. The internal rules, drawn up by the head of the company, set out in particular the rules on discipline and on health and safety (article L.64).
The Malian Code recognises only one category of misconduct with defined effects: gross misconduct. All other misconduct may justify a sanction, or even dismissal, but the dismissal then remains subject to notice and severance pay.
| Effect | Ordinary misconduct | Gross misconduct |
|---|---|---|
| Disciplinary sanction | Possible | Possible |
| Dismissal on an open-ended contract | Possible if the ground is legitimate | Possible |
| Notice | Due | Not due |
| Severance pay | Due after one year of service | Not due |
| Early termination of a fixed-term contract | Impossible | Possible |
| Accrued leave compensation | Due | Due |
The contract may be terminated without notice for gross misconduct, subject to the court’s assessment. Labour Code, article L.41 Severance pay is not due in that case only. Labour Code, article L.53
The term imported from French law
"Serious misconduct" (faute grave), "significant misconduct" or "real and serious cause" are concepts of French law. In Mali, writing "serious misconduct" in a dismissal letter does not waive notice or severance pay. Only gross misconduct has that effect.
In Mali, there are not three degrees of misconduct. There is gross misconduct, and everything else.
2. Gross misconduct: who decides?
The Code does not define gross misconduct. It states that it is left to the assessment of the competent court. The employer labels the facts first, but the court decides if they are challenged.
The definition "misconduct committed with intent to harm" comes from French case law. The Malian court assesses the facts themselves: their seriousness, their consequences, whether they were deliberate or repeated, the danger created. Document each of these elements.
What it costs when the court rejects gross misconduct
Example. Kafo Industries dismisses the sleeping press operator for gross misconduct. He is paid monthly XOF 200,000 and has 7 years’ seniority. The court finds the misconduct justifies dismissal but is not gross.
Notice payment (1 month, absent a collective agreement): XOF 200,000 Severance pay, first 5 years: 200,000 × 20% × 5 = XOF 200,000 Severance pay, 6th and 7th years: 200,000 × 25% × 2 = XOF 100,000 Untaken leave: XOF 200,000 Total payable: 200,000 + 200,000 + 100,000 + 200,000 = XOF 700,000
If the court also finds the ground is not legitimate, damages for wrongful dismissal are added (article L.51).
What you need to do
- Gather material evidence before labelling anything: written statements, reports, photos, records.
- Reserve gross misconduct for facts whose seriousness can be shown in court.
- Calculate the cost of a dismissal with notice, severance payments and untaken leave before choosing gross misconduct.
3. Possible sanctions and their limits
The scale of sanctions (warning, lay-off, dismissal) is set out in the internal rules. Match the sanction to the seriousness and repetition of the facts: that is what makes it defensible.
Disciplinary lay-off
A disciplinary lay-off is an unpaid disciplinary suspension of the contract. It may not exceed eight days (articles L.34 and L.38). For a staff delegate, in case of gross misconduct, the employer may order a provisional lay-off pending the labour inspector’s authorisation to dismiss; if authorisation is refused, the lay-off has no effect (article L.277).
Prohibited sanctions
Imposing fines is prohibited. No deduction may be made from pay outside the cases provided for by the Code. Labour Code, article L.121 Imposing a fine exposes the employer to a criminal fine of XOF 20,000 to 100,000 (article L.318).
When the employee owes a sum as compensation for damage, it may be offset against pay only within the attachable portion (article L.123).
What you need to do
- Set out the scale of sanctions in the internal rules.
- Limit any lay-off to eight days and notify it in writing.
- Never deduct a "fine" on the payslip.
4. The conduct most often cited
Certain facts come up often in disciplinary files:
- drinking alcohol at the workplace;
- refusing properly requested overtime;
- sleeping during working time;
- using company equipment for personal purposes;
- smoking outside authorised areas.
The most common mistake
Believing that a given act always carries the same label. Sleeping at one’s post may be minor misconduct in an office and gross misconduct next to a running press, because an accident may follow. Previous record, warnings already given and the danger created make the difference.
5. The procedure for dismissal for misconduct
| Step | What the Code provides |
|---|---|
| Remove the employee if necessary | Lay-off of eight days at most |
| Notify the termination | In writing, stating the ground; the employer must be able to prove notification |
| Inform the labour inspector | By registered letter; the inspector has fifteen days to give an opinion |
| Staff delegate | Prior authorisation from the labour inspector, otherwise the dismissal is void |
| Settle the accounts | Accrued leave compensation and certificate of employment, even for gross misconduct |
The employer must inform the labour inspector of every dismissal, and an employee who contests the ground may go to court; that appeal suspends the employer’s decision (article L.40). A dismissal that is justified but notified without writing or without a ground exposes the employer to compensation of up to one month’s gross salary (article L.52).
Steps that do not come from the Malian Code
The "preliminary interview", the "request for explanation within 48 hours" and the "two working days’ reflection period" do not appear in the Malian Code. Asking the employee for their account in writing remains good practice: it shows the decision rests on verified facts. Also check your collective agreement and internal rules, which may set a procedure.
What you need to do
- Notify the dismissal by letter handed over against receipt or sent by registered mail, stating the ground.
- Inform the labour inspector by registered letter.
- Check before any decision whether the employee is a staff delegate.
6. The fixed-term contract trap
A fixed-term contract may be ended before its term only for gross misconduct, written agreement of the parties or force majeure. Ordinary misconduct, even repeated, is not enough. An irregular termination costs the pay the employee would have received until the term. Labour Code, article L.25
Example. Kafo Industries ends, for repeated lateness, the 12-month fixed-term contract of a storekeeper paid XOF 150,000 per month, after 4 months. The court rejects gross misconduct.
Months remaining: 12 − 4 = 8 months Damages: 150,000 × 8 = XOF 1,200,000
For a detailed example of labelling, see Serious or gross misconduct: driving without a valid licence.
A closer look: what gross misconduct never removes
Even for gross misconduct, the employee keeps the pay for days worked and the accrued leave compensation, paid on termination (article L.162). The employer must also issue a certificate of employment (article L.61). Gross misconduct removes notice and termination payments, not rights already earned.
Key takeaways in 6 points
- Reason with the Malian Code’s two categories: gross misconduct and all other misconduct.
- Ban "serious misconduct" from dismissal letters: it waives nothing.
- Document the facts before relying on gross misconduct, which the court may reject.
- Limit lay-offs to eight days and never impose fines.
- Notify in writing with the ground, then inform the labour inspector.
- End a fixed-term contract early for misconduct only if it is gross.