Under Moroccan labour law, case law plays a significant role in bridging the void left behind with regards to dismissal for misconduct. If the texts' interpretation by the magistrates has the merit of clarifying certain unclear provisions, it is nevertheless now more difficult to render the predictability of the application of the rules of law.
The legislation provides a procedure to follow in order to establish the validity of the dismissal for gross misconduct. Failure to follow the aforesaid procedure, the dismissal will be considered as abusive even though the employee has indeed committed a gross misconduct. Furthermore, the magistrates do not even consider the reason for dismissal if it transpires that the procedure prior to the dismissal was not scrupulously respected by the employer.
The Moroccan labour law and its applicable case law complete each other in establishing a clearer procedure and yet, it still presents some deficiencies causing a general stir for all parties concerned.
A. Preliminary hearing
Although the legislator laid down the principle for the need of a pre-dismissal interview, the drafting of section 62 fails to provide enough clarity. Inevitably, special labour case issues have been addressed by case law decisions.
1. Summoning the employee
One may wonder whether the eight-days period required by law for summoning the employee to the pre-dismissal interview starts with the recognition of the act or rather, the date on which this act is attributed to the employee.
The Court of Cassation considered that the starting point for the calculating the eight-day period is the date on which the employer was aware of the misconduct1. This reasoning was reinforced by another Court of Cassation judgment which specified that the notice for convening the pre-dismissal interview should be sent within the eight (8) days following the discovery of the gross misconduct2. Finally, in another judgement, the Court of Cassation considered that the employee summoning should take place within the eight (8) days of the attribution of the serious misconduct to the employee3.
It should also be noted that the employer must provide proof of receipt of the notice sent to the employee convening him to the pre-dismissal interview. This is why it is recommended that this must be done by means of a judicial bailiff instead a simple registered letter with acknowledgment of receipt.
2. The process of the pre-dismissal interview
The process of the pre-dismissal interview is not specifically provided for under the Moroccan Labour Code. It can be implied from its article 62 which specifies, at least initially, the purpose of the pre-dismissal interview, specifically the employee's hearing. It is required by law to draw up the minutes of this meeting and have the employee sign them. If the employee refuses to sign the minutes, the employer must, in any case, sign the minutes indicating both the employee's refusal to sign them as well as his/her reason for not doing so.
B. Referral to the labour inspector
If the employee refuses to receive the summoning notice to the preliminary interview or if he fails to attend the interview or even refuses to sign the minutes of the interview, the employer must seek out the labour inspector. However, one question remains yet unanswered: What is the role of the labour inspector during the dismissal procedure?
The Court of Cassation addressed this issue in a recent judgement: The labour inspector does not have an active role to play under the procedure detailed in article 62 of the Moroccan Labour Code. In this regard, the labour inspector is only limited to receiving the employer's notification.
This case law has been reinforced by the explanatory circular/order of article 62 of the Moroccan Labour Code published by the Ministry of Labour on 22 September 2017.
The question that remains unanswered is with regards to the binding force of the aforesaid circular/order with respect to law and case law.
C. The dismissal letter
The dismissal letter must contain a certain number of mandatory statements and must be notified to the employee within 48 hours from the date on which the decision was made. The notification of the dismissal letter must be provided by any means provided for by law or recognized under case law. Moreover, a copy of the notification letter must be sent to the labour inspection.
1. The content of a dismissal letter
It is imperative and even vital to be vigilant when drafting a dismissal letter, especially when indicating the grounds for dismissal. Indeed, case law has been consistent on the matter, establishing that the reason prescribed in the dismissal letter is the only valid reason that a judge will examine. Any other motive that is brought forward by the employer at a later stage during the judicial proceeding will not be taken into consideration.
Furthermore, the Court of Cassation indicates that if the foreclosure deadline is not indicated in the dismissal letter, it will not be enforceable against the employee.
2. The 48 hour deadline
The provisions of article 63 of the Moroccan Labour Code provide that the decision of a disciplinary sanctions (such as the dismissal letter ) must be submitted to the employee within 48 hours following the date on which the decision was taken.
3. Notification formalities
Finally, the provisions of article 63 of the Moroccan Labour Code only provide for the delivery of the dismissal letter by hand against receipt, or by virtue of a registered letter with acknowledgment of receipt. Case law has admitted the principle that it may be notified by virtue of a judicial bailiff.
1Judgement of the Court of Cassation No. 1143 of 21 November 2009 (file n° 1471/5/2009)
2Judgement of the Court of Cassation No. 1056 of 18 September 2013 (file n° 1626/5/1/2013)
3Judgement of the Court of Cassation No. 343 No. 15 April 2010 (file n° 1801/5/2009)
4Judgement of the Court of Cassation No. 2003 dated 29 December 2011 (file n°738/5/1/2013)