Préavis et Indemnité de Départ

Exigence de préavis

An employer may terminate the services of an employee by giving a notice in writing. In the notice of termination, employer informs the employee of his decision to terminate the contract specifying the term of notice and the date on which such notice expires. If an employer does not specify that dismissal is subject to notice, it is considered dismissal with immediate effect (summary dismissal). Employer is not required to state the reason for termination in the same letter of dismissal with notice. Within one month of notice of termination, an employee may ask the employer to provide for the reasons leading to dismissal. On receipt of such request by the employee, an employer is required to specify the reasons which led to dismissal. The reasons must be real and serious and should relate to employee's conduct or capacity (personal reasons) or based on the needs and operations of the enterprise (business/economic reasons). If an employer does not provide response to the request of employee to specify reasons for dismissal, such dismissal is considered unfair and employee is entitled to damages. 

A fixed term employment contract may be terminated before expiry of its term in the event of misconduct or by the common consent (agreement) of parties. An indefinite term contract may be terminated by either party immediately (summary dismissal) in the event of gross misconduct by the other party; or with notice period if there is a real and serious cause for termination. Both the fixed term and indefinite term contract can be terminated by common consent of the parties.

Termination with notice may arise only in the case of an indefinite term contract and must be based on above mentioned objective and serious reasons. An employer, employing at least 15 persons, must notify the Comite de Conjoncuture of any termination/redundancy taking place on any grounds not linked to employee's aptitude or conduct. The term of notice period varies according to seniority of employees in the company. The notice period is 02 months for less than 5 years of service; 4 months for more than 5 but less than 10 years of service; and 6 months for equal to and more than 10 years of service.

A termination notice takes effect only on the first or fifteenth day of the month. Notice given before the fifteenth of the month will take effect on the fifteenth. Notice given after the fourteenth day takes effect on the first day of the following month. In the event of gross misconduct, an employer may terminate an employment contract without notice in the case of an indefinite term contract and before the end of its term in the case of a fixed term contract. Dismissal is considered unfair and abusive if an employer fails to provide an employee with detailed grounds leading to dismissal; dismissal is not based on serious and genuine reasons related to employee's aptitude (capacity) or attitude (conduct) or arising from operating needs of the enterprise (business or economic reasons); and if the dismissed employee was protected against any dismissal. The prohibited grounds include marital status, pregnancy, maternity leave, race, sexual orientation, religion, political opinion, age, trade union membership and activities, disability and ethnic origin of a worker. The workers enjoying special protection are workers' representatives, pregnant women and women on maternity leave.

An employee may also terminate an employment contract (resignation) after serving a notice to the employer. In the case of gross misconduct on the part of employer, no prior notice is required. Employee must also clearly indicate the reasons that led to his resignation. The notice period in the case of resignation by employee is half the period that an employer has to follow in the case of dismissing an employee. Thus, the resignation notice is 01 month for less than 5 years of service; 2 months for equal to or more than 5 but less than 10 years of service; and 3 months for equal to and greater than 10 years of service.

Employment contract may be terminated during the probationary period without paying any compensation. During the first two weeks of probation period, an employment contract cannot be terminated without the consent of the other party. The notice period during the probation period is calculated based on the length of probationary period set in the employment contract or collective agreement. The notice period during trial period is the same for the both the worker and the employer. The notice period is 2 days for 2 weeks of trial period; 3 days for 3 weeks of trial period; 4 days for 4 weeks of trial period; 15 days for 2 months of trial period; 16 days for 4 months of trial period; 20 days for 5 months of trial period; 24 days for 6 months of trial period; 28 days for 7 months; and 01 month for 8-12 months of trial period. The notice period is counted in calendar days and not in working days. Summary dismissal is possible during the trial period.

The members of staff delegations, health and safety representative and the equality representative, benefit from special protection against dismissal. They cannot be dismissed; cannot be convened to a preliminary interview prior to dismissal, and the essential provisions of their employment contracts cannot be modified. The special protection covers the whole duration of their mandate and expires 6 months at the end of their mandate. A non-elected candidate benefits from protection against dismissal for a period of 3 months after the submission of candidacy.

sources: §124, 251-1 & 337-1&5 of Labour Code 2006, last amended in 2017; Law of 23 July 2015 on the reform of social dialogue within companies

Indemnité de départ

Employees are entitled to severance pay (indemnité de départ) depending on the seniority of the worker with the employer. Severance pay is due to a dismissed employee having completed at least 5 years of service. The amount of severance pay ranges between one to twelve months depending on the employee's seniority. There is no severance pay if a worker has worked for less than five years. The severance pay is 01-month salary for at least 5 but less than 10 years of service; 02-months' salary for 10-15 years of service; 03-months' salary for 15-20 years of service; 06-months' salary for 20-25 years of service; 09-months' salary for 25-30 years of service; and 12-months' salary for more than 30 years of service. There is no provision for severance payment if employment contract is terminated for gross misconduct.

Employers with fewer than 20 employees may pay severance pay or pay for longer notice periods. For at least 5 years but less than 10 years of service, severance pay is one month's salary or 05 months' notice; for 10-15 years of service, severance pay is 02 months' salary or 08 months' notice; for 15-20 years of service, severance pay is 03 months' salary or 09 months' notice; for 20-25 years of service, severance pay is 06 months' salary or 12 months' notice; for 25-30 years of service, severance pay is 09 months' salary or 15 months' notice; and for more than 30 years of service, severance pay is 12 months' salary or 18 months' notice. 

Severance pay is not due in the following cases: justified dismissal with immediate effect; automatic termination of employment contract due to expiry of contract; resignation with notice by the worker; termination by mutual consent; early retirement and unfair resignation with immediate effect by the worker.

In line with the amendment in the Labour Code through Omnibus Law of April 2018, an employee who has resigned with immediate effect for gross misconduct by the employer is entitled to the same compensation as an employee whose dismissal with immediate effect has been declared abusive by the Labour Court. Such workers are entitled to compensation in lieu of notice and severance pay.

sources: §124-7 & 9 of Labour Code 2006, last amended in 2017