Questions / Answers on the Labour Code

The notice period shall take effect from the first day following notification of the notice. During its course, the employer and the employee remain bound by all their obligations.

The employee who has not taken the initiative of the termination of the contract benefits during the leave-leave period of absence authorizations whose duration is fixed by articles 49 and 50 of the code, to enable him to look for a new job.

The resignation of the employee does not have to be motivated, but it is not admitted when it is not presented in written form carrying the legalization of the signature of its author by the competent service (art 34).

Conversely, it is forbidden to dismiss a worker without a valid reason. It follows from the obligation to mention, in the letter of notice, the reason invoked by the employer and to gather the means to establish its reality, in case of dispute on this subject (art. 35).

The dismissal procedure varies depending on whether the motivation is disciplinary or otherwise.

The employer exercises its disciplinary power over employees as an extension of its management power in the company. When an employee commits a fault, he may impose one of the penalties provided for, provided he respects the graduation chosen, so that he can decide to dismiss the employee after having exhausted all other sanctions in course of the year (art 38).

However, in case of serious misconduct, the employee who committed it can be returned directly without notice or compensation.

The legislator has deeply reorganized this area, since it has determined the disciplinary sanctions which is liable to the employee who commits a minor fault and provided for their gradual application during the year, distinguishing between a first category of sanctions applicable directly and a second of which the implementation is conditioned by the respect of a particular procedure, the same one which must be applied in case of dismissal of the worker (art. 37).

Sanctions and their gradual application are of public order (Article 38), but the practice can give rise to flexible applications in the field through two routes:

1. It is possible to provide for the disciplinary regime in the internal regulations of the company or in a collective agreement (art. 105-139).
2. As long as the legislator has not defined the serious misconduct and has limited himself to enumerating a list of faults justifying the use of this qualification, it is permissible to consider as such, other conduct, either through the rules of procedure or the collective agreement, after the event. In this case, the dismissal procedure must be initiated for serious misconduct, with the option of mitigating the sanction chosen, during the hearing procedure, or by concluding a transaction. In fact, as long as the employer can resort to dismissal of the worker, it is permissible to adopt less severe penalties, without taking into account the graduation provided for in the application of the sanctions.

An employer who intends to dismiss a worker is legally obliged to provide him with an opportunity to defend himself in the course of the hearing process.

Under Article 62, the employee must be summoned within a week of the finding of the fault motivating his dismissal. It is understood by the employer or his representative in the presence of the employee representative or the union representative chosen by the worker. A hearing report is drawn up by the employer; it is signed by both parties and a copy is issued to the employee. The labour inspector is used if one of the parties refuses to perform the procedure.

When the sanction imposed is the dismissal, the layoff, the transfer or the second or third blame, the decision must be handed to the worker concerned in person, against receipt, unless it is addressed to him by registered mail with acknowledgment of receipt, within 48 hours of being taken.

It must be accompanied by the report of hearing and bear mention:

• Reasons for definitive dismissal.
• From the date of the employee’s hearing.
• The 90-day time limit for bringing the judicial remedy.

Copy of the letter of dismissal must be addressed to the officer responsible for labour inspection (art 64)

The 90-day period to lodge a judicial appeal against a dismissal decision is a matter of public policy. As for the one who is observed in the other remedies relating to the labour dispute, it was increased to two years by the code whereas it was only one year.

As such, the Supreme Court has held in a recent decision that failure to comply with the disciplinary dismissal procedure deprives the employer of the 90-day limitation period and allows the normal limitation period of two years to be taken into account; to the extent that the decision to dismiss is presumed to be void for failure to comply with the legal procedure for dismissal (Decision No. 938 of 15 November 2006, Social File No. 2006/1/5/968, Supreme Court Decisions No. 67, January 2007, p 347, in Arabic)

The employer is obliged by the obligation to give a notice, except in case of serious fault (art 43 and 51). Similarly, the Code provides for the payment of severance pay to workers who have completed at least six months in an enterprise, except where the dismissal is motivated by serious misconduct. It follows that the exemption from notice and severance pay is only instituted in the event of dismissal for serious misconduct.

The code does not define them and is limited to enumerating faults deemed to be so when they are committed by an employee, among which is the disclosure of a professional secret causing damage to the company, conduct of a criminal nature. unjustified absence for four days or eight half days during the year. . . etc. (art 39)

The Code also mentioned four serious misconduct among those committed by the employer or the head of the enterprise or establishment, covering the insult, aggression and violence against the worker, sexual harassment and sexual harassment. incitement to debauchery (art. 40). According to the established case-law, the assessment of the seriousness of the fault is a discretionary power of the court, which takes into account the enumerations provided in the two lists for information and non-restrictive purposes, as well as the circumstances of the case.

When the commission of serious misconduct by the employer is established, the employee may consider himself unfairly dismissed and continue to obtain the corresponding damages.