A dismissal for personal reasons is often won or lost before the judge even looks at the merits of the case: an incomplete notice of meeting, a letter sent one day too early or a complaint left out of the letter is enough for the employer to be found liable, even where the employee had genuinely committed misconduct. An explainer on the Labour Code rules and the habits that make the decision secure.
Grounds that must be provable
The Labour Code allows an employee to be dismissed only on objectively verifiable grounds that make it impossible to continue the employment relationship (Article 172.6). A dismissal is “for personal reasons” when those grounds relate to the employee personally (Article 172.7):
- their state of health, where it results in permanent disability;
- their unfitness for the job;
- their professional inadequacy;
- their misconduct, with job abandonment recorded by a bailiff capable of constituting justified grounds.
Two rules carry great weight in a dispute. First, loss of trust is not sufficient on its own: only the objective facts that justify it can form the basis of the dismissal (Article 172.5). Second, it is for the employer to prove that the grounds exist and are relevant, and the employer may not rely before the labour inspector or the judge on any ground not stated in the dismissal letter (Article 172.9).
The file must therefore be built before the notice of meeting: reports, emails, official records, previous warnings, written witness statements. Before a judge, genuine grounds that cannot be proven amount to an unjustified dismissal.
Dismissal for misconduct: two additional safeguards
Where the grounds are disciplinary, the dismissal is also a sanction and follows the rules for sanctions:
- the one-month time limit: the employer may no longer sanction misconduct that the employer or one of its representatives has known about for more than one month, unless criminal proceedings have been brought within that period (Article 212.2);
- the internal rules: the employer may only impose a sanction provided for in the internal rules (Article 212.3). In companies with at least 25 employees, a disciplinary dismissal based on internal rules that are missing or incomplete is vulnerable. See our guide The internal rules.
If the misconduct requires the employee to be removed immediately, the employer may order a precautionary suspension pending its decision. It may not lead to a deduction from salary of more than ten working days; if the judge finds that it was not justified, those days must be paid (Article 172.15).
The procedure, step by step
1. The notice of the preliminary meeting
The notice of meeting is sent by registered letter or delivered by hand, and must reach the employee at least five days before the meeting. It must state (Article 172.11):
- the date, time and place of the meeting;
- the grounds on which dismissal is being considered;
- the employee’s right to be assisted, and where appropriate represented, by a person of their choice who is a member of the company’s staff or of the trade union to which they belong.
A single missing particular makes the procedure irregular.
2. The preliminary meeting
The employer, who may be assisted by members of the company’s management, sets out the grounds being considered and hears the explanations of the employee and of the person assisting them. Minutes are drawn up on the spot and signed by all parties; any party who refuses to sign records their reservations in the minutes and countersigns. Company employees who take part in the meeting are paid as if they had remained at their post, and their travel expenses are borne by the employer (Article 172.11).
If the employee does not attend and is not represented, the employer is not obliged to arrange a further meeting (Article 172.12).
3. The reflection period
No decision may be taken during the meeting. The employer observes a reflection period during the two working days that follow (Article 172.12).
4. Notification of the dismissal
The letter is delivered by hand against acknowledgement of receipt or sent by registered post, no earlier than the third day after the day set for the meeting. It must expressly state the ground or grounds for dismissal (Article 172.13).
Example timetable, with no public holiday: notice of meeting delivered by hand against a signed receipt on Monday 2 November, meeting on Monday 9 November, reflection on Tuesday 10 and Wednesday 11, dismissal letter delivered no earlier than Thursday 12 November.
What a mistake costs
The Code provides for two separate awards, which are cumulative with each other and with the other termination payments:
- Procedure not followed: compensation equal to three months’ salary, as soon as any one of the procedural rules has not been followed (Article 172.14).
- Unjustified dismissal: compensation at least equal to six months’ salary, calculated on the last gross monthly salary for a month of full activity (Article 172.10).
For an employee paid GNF 6,000,000 gross per month, a dismissal whose grounds are not proven and whose letter was sent one day too early therefore exposes the employer to at least GNF 54,000,000 (3 + 6 months’ salary), on top of the sums due on termination in any event.
What remains due to the dismissed employee
Except in the case of gross misconduct, the employee is entitled to:
- notice of 1 month for operational staff, 2 months for supervisors and foremen, and 3 months for managers and equivalent staff (Article 172.23). It runs from the day the employee receives the dismissal letter (Article 172.24) and gives them eight hours a week to look for work (Article 172.25);
- severance pay if they have actually worked for at least twelve months in the company, calculated in accordance with an order of the minister responsible for Labour (Article 172.30).
This severance pay is cumulative with the payment in lieu of paid leave, the payment in lieu of notice and the compensation due for an irregular dismissal (Article 172.31). No notice and no severance pay are due in the case of gross misconduct (Articles 172.29 and 172.30).
In all cases, the employer issues a certificate of employment limited to the start and end dates and the posts held, with no unfavourable assessment (Article 172.32). If the employee signs a receipt in full and final settlement, they may challenge it in a reasoned written statement within three months; this time limit can only be relied on against them if the receipt states it in very prominent characters and the words “in full and final settlement” are written in their own hand (Article 172.33).
What about termination by mutual agreement?
It is possible, but a termination by mutual agreement is lawful, and sets aside the dismissal rules, only if it is recorded in a document signed in the presence of the labour inspector (Article 172.2). A settlement signed privately does not protect the employer.
GHR best practice
- Gather the evidence for the grounds before sending the notice of meeting.
- In cases of misconduct, check the date on which it became known: after one month, it is too late.
- Check that the sanction being considered is provided for in the internal rules.
- Prefer delivery by hand against a dated signed receipt: it avoids any argument about the date of receipt.
- Prepare the minutes before the meeting and have them signed on the spot.
- Set the timetable in writing: meeting, two working days of reflection, letter no earlier than the third day.
- Set out in the letter all the complaints, with dates, together with the steps of the procedure: anything not included can no longer be relied on.
- Calculate the end-of-contract sums before notification.
