The Democratic Republic of Congo legislature
subordinates the existence of a valid and legitimate ground for the
exercise of the right of dismissal of the employer, who can only dismiss
for a valid reason connected with the worker's conduct.
1. In DRC apart from the grounds stated by law, dismissal would be illegal or without just cause. Very often, collective agreements and company regulations, policies provide for misconduct whose severity justifies dismissal. There can be no doubt that the worker is guilty of a serious breach or gross negligence, a legitimate reason for dismissal.
2. In the light of Article 62 of the Labor
In the event of a breach, notification shall be made personally either to two literate witnesses or by registered letter to the post. It should be emphasized that this formality of written notification of dismissal, with an explicit indication of the reason, applies both to individual dismissals and to mass dismissals.
Nevertheless, it is up to the employee to prove that the dismissal is illegitimate by proving the fault of the employer.
3. Fault or misconduct of the employee is understood as an error of conduct which a normal worker could not have committed. This can be either an act of negligence or serious negligence, contrary to the law or regulation of service and which prejudices the smooth running of the company (delay, absence, distraction and negligence at work, ...); or of gross negligence for which the employer can no longer trust the employee. However, when the employer fails to provide proof of the facts giving rise to the dismissal, there is doubt as to the fault relied on, consequently the dismissal is unreasonable.
4. The employee can argue that the sanction of dismissal is taken without hearing him and without having provided his written explanations of the facts alleged against him. However, in a similar case, the Labour Court find the dismissal justifiable because the crisis of confidence between the employer and the worker which the employer retains as grounds for dismissal was well founded in the light of the complaints or information against the worker and do not require prior investigation.
5. Let us argue that dismissal based on the crisis of confidence is linked to the conduct of the worker. It is legal because it is provided for by the Labor Code. The worker's conduct, consisting of unlawful action or omission, becomes a valid ground for dismissal only if it is perpetrated with or without the positive will to infringe a duty and without intent to harm or deceive. It is not enough for a worker to have committed a misconduct but if by usual conduct, has shown that he no longer wishes or is able to perform his duties and that he has been guilty of serious misconduct, making it impossible for the employer to continue to use his services.
6. The procedure is provided by article 72 of the labour code:
• In fact, any employment contract may be terminated without notice for gross negligence;
• A party is deemed to have committed gross negligence when the rules of good faith do not permit the other party to continue to perform the contract.
• The party proposing to terminate the contract for gross negligence shall be required to notify the other party in writing of its decision within 15 working days at the latest after having become aware of the facts relied upon;
• For the purposes of an investigation, the employer has the right to notify the worker, within 2 working days of being informed of the facts, of the suspension of his duties.
• The suspension of duties for the purpose of investigation is a precautionary measure which can not be confused with the suspension of the contract of employment.
• The duration of the suspension may not exceed 15 days, and an additional period of 15 days is granted to the employer whose head office is not at the place of performance of the contract.
• Written documents may be sent by registered letter to the post office, or handed to the person concerned against receipt or, in case of refusal, in the presence of two literate witnesses.
• The period of suspension of the worker's duties for investigation purposes is considered to be service time.
7. Notification of termination is provided by article 76 of the labour code:
Any termination of the contract shall be notified in writing by the party taking the initiative to the other party. Where the termination takes place on the initiative of the employer, the letter of notification shall state clearly the reason for the termination.
7. Obligation to issue a certificate is provided by Article 79 and states that when the contract is terminated for any reason whatsoever, the employer is obliged to issue to the worker a certificate attesting to the nature and duration of the services performed, the date of commencement and termination of the benefits and his registration number Social Security. No other indication can be added.
This certificate must be delivered no later than 2 working days after the end of the contract.
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