Disciplinary sanctions and serious misconduct in Morocco
If you are an employer or an employee in Morocco, the line between an ordinary disciplinary sanction and a dismissal for serious misconduct changes everything: notice, compensation, procedure. The Labour Code (Law No. 65-99) governs each step, and the slightest procedural error can turn a justified dismissal into a wrongful one. Here is how it really works.
The essentials in brief
Moroccan law distinguishes two worlds. Non-serious misconduct calls for a graduated sanction: warning, reprimand, suspension, then transfer [Art. 37]. Serious misconduct, for its part, opens the door to dismissal without notice or compensation [Art. 61]. But beware: even for serious misconduct, the employer must hear the employee, draw up a report and observe strict time limits [Art. 62]. The burden of proving the grounds falls on the employer [Art. 63]. Skipping a step means risking a great deal.
Non-serious misconduct: the sanction rises in steps
For misconduct that is not serious, the employer cannot improvise. The Code sets a precise ladder. In order: the warning, the reprimand, then a second reprimand or a suspension not exceeding eight days, and finally a third reprimand or transfer to another department - or even another establishment, taking into account the employee's place of residence [Art. 37].
This is not a menu from which one picks at random. The employer applies disciplinary sanctions gradually [Art. 38]. In other words, one does not dismiss someone because he was late once. One starts at the bottom of the ladder.
And when the ladder is exhausted? When the disciplinary sanctions are exhausted within the year, the employer may proceed with the dismissal of the employee, and that dismissal is then considered justified [Art. 38]. This is where people often go wrong: dismissal for non-serious misconduct becomes possible not all at once, but at the end of a documented course over a twelve-month period.
Note also that the heaviest sanctions on this ladder - suspension and transfer - trigger the defence procedure provided for in Article 62 [Art. 37]. The graduated approach therefore does not exempt one from the formalities.
A blunt piece of advice: keep a written record of each step. Without it, your ladder does not exist in the eyes of the judge.
Serious misconduct: the closed list of the Code
Serious misconduct is not an assessment based on the mood of the day. The legislator has drawn up a list. The following are considered serious misconduct that may lead to dismissal: an offence affecting honour, trust or good morals that has given rise to a final judgment depriving of liberty; the disclosure of a professional secret that has caused harm to the company [Art. 39].
The list continues, and it is long. Inside the establishment or during work, the following constitute serious misconduct: theft, breach of trust, public drunkenness, consumption of narcotics, physical assault, serious insult, the deliberate and unjustified refusal to perform work within one's competence [Art. 39].
Absence also counts. An employee's unjustified absence for more than four days or eight half-days during a twelve-month period is serious misconduct [Art. 39]. Four days. Not a week, not a month. The figure is in the text.
Added to this are serious damage to equipment, machines or raw materials caused deliberately or through serious negligence; misconduct causing considerable material damage to the employer; failure to observe safety instructions that has caused considerable damage; incitement to debauchery; and any form of violence or assault against an employee, the employer or his representative that impairs the functioning of the company. In this last case, the labour inspector - the labour inspection officer, the public service responsible for monitoring the application of labour law - records the breach and draws up a report on it [Art. 39].
Remember in passing that the employee is liable, in the course of his work, for his act, his negligence, his lack of skill or his imprudence [Art. 20]. Personal responsibility is not a figment of the imagination.
Serious misconduct can also come from the employer
This is too often forgotten. The Code also lists serious misconduct committed by the employer, the head of the company or the establishment against the employee: serious insult, any form of violence or assault, sexual harassment, incitement to debauchery [Art. 40].
The consequence is significant. When an employee leaves his work because of one of these forms of misconduct, and it is established that the employer did indeed commit it, the departure is treated as a wrongful dismissal [Art. 40]. The employee is therefore not a resigning party; he is treated as an unfairly dismissed employee, with the rights that follow.
Frankly, this is one of the least known protections in Moroccan law. Suffering harassment and leaving does not amount to waiving one's rights.
Procedure: the step no one can skip
Here is the heart of the mechanism. Before any dismissal, the employee must be able to defend himself and be heard by the employer or his representative, in the presence of the staff delegate - the staff-elected representative responsible for representing the employees before the employer - or the union representative he chooses himself [Art. 62].
The time limit is short. This hearing must take place within a period not exceeding eight days from the date the alleged act was found [Art. 62]. A report is drawn up by the company's management, signed by both parties, and a copy given to the employee [Art. 62]. If one of the parties refuses to undertake or to continue the procedure, the labour inspector is referred to [Art. 62].
Then comes the notification. The disciplinary sanction decision under Article 37, like the dismissal decision, is handed to the employee in person against a receipt or by registered letter with acknowledgement of receipt, within 48 hours of the decision being taken [Art. 63].
And the proof? It falls on the employer. The justification of the dismissal by an acceptable ground rests with the employer; likewise, he must prove, when he claims it, that the employee abandoned his post [Art. 63]. Honestly, this is where most cases collapse: real grounds but no trace, no report, no acknowledgement of receipt.
A dismissal, even one based on genuine serious misconduct, becomes fragile without this mechanism. The misconduct justifies; the procedure protects.
The special case of staff delegates
The staff delegate enjoys reinforced status. Any disciplinary measure consisting of a change of department or task, any suspension, and any dismissal of a delegate, whether full member or substitute, must be the subject of a decision approved by the labour inspector [Art. 457].
In the event of serious misconduct, the employer may nonetheless immediately order the suspension of the delegate, but on condition that he refer the proposed sanction to the labour inspector without delay [Art. 459]. The inspector must then decide - approval or reasoned refusal - within the eight days following the referral [Art. 459].
You want to sanction a staff representative without going through the inspectorate? The Code says no.
Sources
- Article 20 — Labour Code (Law No. 65-99)
- Article 37 — Labour Code (Law No. 65-99)
- Article 38 — Labour Code (Law No. 65-99)
- Article 39 — Labour Code (Law No. 65-99)
- Article 40 — Labour Code (Law No. 65-99)
- Article 61 — Labour Code (Law No. 65-99)
- Article 62 — Labour Code (Law No. 65-99)
- Article 63 — Labour Code (Law No. 65-99)
- Article 457 — Labour Code (Law No. 65-99)
- Article 459 — Labour Code (Law No. 65-99)
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