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Madagascar
 


Source and scope of regulations - 2019    

References
  • Labour Code [LC], Act No. 2003-044 dated 28 July 2004
    (available in French only, Loi n° 2003-044 du 28 juillet 2004 portant Code du travail)
    Date: 28 Jul 2004; view website » (view in NATLEX »)
  • Decree No 2007-008 dated 9 January 2007 establishing the form, duration and other terms of probationary employment. Published in the Official Journal (J.O) no. 3 098 of 02/04/07, p. 2583.
    (Available in French only: Décret N°2007-008 Fixant les formes, la durée et autres modalités de l'engagement à l'essai)
    Date: 09 Jan 2007; view website » (view in NATLEX »)
  • Decree No 2007-009 of 9 January 2007 establishing the conditions and the duration of the notice period to be observed when terminating an employment contract of indefinite duration. Published in the Official Journal (J.O) no. 3 099 of 09/04/07, p. 2647.
    (Available in French only: Décret N° 2007-009 Déterminant les conditions et la durée du préavis de résiliation du contrat de travail à durée indéterminée)
    Date: 09 Jan 2007; view website » (view in NATLEX »)
  • Decree No. 2011-626 of 11 October 2011 implementing Law No. 2003-044 of 28 July 2004 on the Labour Code, relating to the fight against HIV / AIDS in the workplace. Published in the Official Journal (J.O), 2011-12-05, n° 3397, pp. 1986-1987.
    (Available in French only: Décret n° 2011-626 du 11 octobre 2011 portant application de la loi n° 2003-044 du 28 juillet 2004 portant Code du travail, relatif à la lutte contre le VIH/SIDA en milieu de travail).
    Date: 11 Oct 2011; view website » (view in NATLEX »)
Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: civil/public servants; seafarers
Remarks:
  • Article 1 LC

Types of employment contracts - 2019    

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Maximum probationary (trial) period: 12 month(s)

Remarks:
  • Art. 36 LC: Maximum 6 months renewable once.
    See also, the Decree No 2007-008, Arts. 3, 4 and 5:
    The duration of the probationary period varies according to the workers' category (5 categories in total) as follows:
    - 3 months for skilled and unskilled blue-collar workers and white-collar workers who do not have managerial responsibilities (cat. 1,2, 3);
    - 4 months for engineers, employees with supervisory or managerial functions (cat. 4); and
    - 6 months for high-ranking executives (cat. 5).
    The probationary period can be renewed once.

Fixed term contract (FTC):
  • FTC regulated: Yes
    Remarks:
    • Art. 8 LC
  • Valid reasons for FTC use: objective and material reasons
    Remarks:
    • Art. 8 (4) LC.
  • Maximum number of successive FTCs: 2
    Remarks:
    • Art. 8 (5) LC: Any FTC concluded for at least 6 months will automatically transform into a contract of indefinite duration after 2 renewals.
  • Maximum cumulative duration of successive FTCs: 2 year(s)
    Remarks:
    • Art. 8 (3) LC.

Substantive requirements for dismissals (justified and prohibited grounds) - 2019    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 21 LC.


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • Art. 20 LC: Termination of employment is unfair if it is not justified by a legitimate reason, or a genuine and proper cause. ("La rupture est abusive lorsqu'elle est effectuée sans motif légitime, sans cause réelle et sérieuse".)


Prohibited grounds: pregnancy; maternity leave; filing a complaint against the employer; race; sex; religion; political opinion; trade union membership and activities; disabilities; HIV status; ethnic origin
Remarks:
  • - Worker's opinion and trade union membership or activities: see art. 20 LC and 141 LC.
    - Pregnancy and maternity leave: see art. 95 and 97 LC.
    - HIV status: Act No. 2005-040 of 20 February 2006 concerning the fight against HIV/AIDS and the protection of the rights of persons living with HIV/AIDS. See art. 46 which provides that the serological status of a worker, her or his partner or close family members shall not constitute a direct or indirect cause for non-recruitment or termination of employment.
    - Disability: see art. 105 LC which contains a general prohibition of discrimination in employment on the basis of disability.
    - Art. 5 LC protects employees against retaliation (including dismissal) if they report sexual harassment or testify against the employer in sexual harassment cases.
    - In addition art. 261 LC provides that any discriminatory treatment based on race, religion, origin, sex, trade union affiliation as well as political opinion or membership in relation to access to employment and vocational training, conditions of employment and promotion, conditions of remuneration and dismissal, shall be punished with a fine or imprisonment.


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
Remarks:
  • - Any dismissal of a workers' representative, a trade union officer or a member of the works council is subject to the authorization of the Labour Inspector (see Arts. 152, 156 and 165 LC).
    - As a general rule, pregnant women cannot be dismissed during pregnancy. However dismissal is possible if the pregnant employee commits malpractice which is not connected to her pregnancy: Art. 95 LC.
    - Dismissal is prohibited during maternity leave: Art. 97 LC.


Procedural requirements for individual dismissals - 2019    

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Notification to the worker to be dismissed: written

Remarks:
  • Art. 21 LC and Art. 4 of Decree No 2007-009 of 9 January 2007 establishing the conditions and the duration of the notice period to be observed when terminating an employment contract of indefinite duration.

Notice period:
Remarks:
  • The notice period is regulated by Decree 2007-009.
    The statutory minimum notice period is set according to the length of service and varies according to the workers' category. For the purpose of calculating the notice period, workers are divided into 5 groups (see Art. 2 Decree 2007-009).

    - Group I covers mainly unskilled blue collar workers, workers performing work which requires limited skills or professional experience, and employees performing tasks which only require limited training.
    - Group II includes skilled blue-collar workers and employees with skills and experience but whose work does not involve any specific responsibility.
    - Group III includes highly skilled blue-collar workers with limited responsibility, qualified employees with extensive professional training whose work involves taking initiative and exercising specific responsibilities, and junior executives.
    - Group IV includes engineers and highly qualified technicians and employees exercising supervisory, coordination or managerial functions.
    - Group V covers those workers who do not fall within the previous category, which mainly includes top executives.

    The notice periods are set as follows:
    * Length of service < 8 days:
    Group I: 1 day; Group II: 2 days; Group III: 3 days; Group IV: 4 days; Group V: 5 days.
    * Length of service < 3 months:
    Group I: 3 days; Group II: 8 days; Group III: 15 days; Group IV: 1 month; Group V: 1 month.
    * Length of service < 1 year:
    Group I: 8 days; Group II: 15 days; Group III: 1 month; Group IV: 1.5 months; Group V: 3 months.
    * Length of service > 1 year:
    Group I: 10 days; Group II: 1 month; Group III: 1.5 months; Group IV: 2.5 months; Group V: 4 months.
    * Length of service > 3 years: additional 2 days per year of service
    * Length of service > 5 years:
    Group I: 1 month; Group II: 1.5 months; Group III: 2 months; Group IV: 3 months: Group V: 6 months.
    • tenure ≥ 6 months
      • Workers' category I - 8 day(s).
      • Workers' category II - 15 day(s).
      • Workers' category III - 1 month(s).
      • Workers' category IV - 45 day(s).
      • Workers' category V - 3 month(s).
    • tenure ≥ 9 months
      • Workers' category I - 8 day(s).
      • Workers' category II - 15 day(s).
      • Workers' category III - 1 month(s).
      • Workers' category IV - 45 day(s).
      • Workers' category V - 3 month(s).
    • tenure ≥ 2 years
      • Workers' category I - 10 day(s).
      • Workers' category II - 1 month(s).
      • Workers' category III - 45 day(s).
      • Workers' category IV - 75 day(s).
      • Workers' category V - 4 month(s).
    • tenure ≥ 4 years
      • Workers' category I - 18 day(s).
      • Workers' category II - 38 day(s).
      • Workers' category III - 53 day(s).
      • Workers' category IV - 83 day(s).
      • Workers' category V - 128 day(s).
    • tenure ≥ 5 years
      • Workers' category I - 1 month(s).
      • Workers' category II - 45 day(s).
      • Workers' category III - 2 month(s).
      • Workers' category IV - 3 month(s).
      • Workers' category V - 6 month(s).
    • tenure ≥ 10 years
      • Workers' category I - 1 month(s).
      • Workers' category II - 45 day(s).
      • Workers' category III - 2 month(s).
      • Workers' category IV - 3 month(s).
      • Workers' category V - 6 month(s).
    • tenure ≥ 20 years
      • Workers' category I - 1 month(s).
      • Workers' category II - 45 day(s).
      • Workers' category III - 2 month(s).
      • Workers' category IV - 3 month(s).
      • Workers' category V - 6 month(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Art. 18 LC and Art. 9 Decree No 2007-009 of 9 January 2007 establishing the conditions and the duration of the notice period to be observed when terminating an employment contract of indefinite duration.

    Notification to the public administration: No

    Remarks:
    • However, when an employer intends to dismiss a workers' representative, a trade union officer or a member of the works council, he or she shall obtain the authorization to do so from the Labour Inspector (see Arts. 152, 156 and 165 LC).

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Remarks:
    • However, when an employer intends to dismiss a workers' representative, a trade union officer or a member of the works council, he or she shall obtain the authorization to do so from the Labour Inspector (see Arts. 152, 156 and 165 LC).

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2019    

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    Definition of collective dismissal (number of employees concerned):
    There is no statutory definition of collective dismissal.

    Remarks:
    • Art. 24 LC regulates dismissals for economic reasons, which may be "collective or individual".
      However, the consultation and notification requirements applicable to collective dismissals for economic reasons do not apply to individual economic dismissals (see Art. 27 LC).

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • Art. 25 LC: prior consultation with the Works council (which is compulsory in undertakings with at least 50 permanent employees) and/or with the worker's representatives.

    Notification to the public administration: Yes

    Remarks:
    • Art. 25 LC: mandatory notification to the Labour Inspector.

    Notification to workers' representatives: Yes

    Remarks:
    • Art. 25 LC.

    Approval by public administration or judicial bodies: No

    Remarks:
    • No approval required. The Labour Inspector only issues a recommendation on the dismissal within 15 days of the date of notification (Art. 25 LC).
      However, if the parties do not find an agreement on the list of employees to be dismissed, the Labour Inspector will issue a decision in that respect in accordance with the selection criteria listed in Art. 26 LC.

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): Yes

    Remarks:
    • Art. 25 LC: the list of redundant employees shall be established by the employer in consultation with the worker's representatives. The priority rules to be observed in selecting the employees must be in accordance with the agreed social plan, if any. In the absence of such agreed dismissal order, it shall take into account:
      - the length of service in the undertaking;
      - professional values, technical skills and professionalism;
      - family responsibilities.

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): No

    Priority rules for re-employment: No

    Remarks:
    • No preferential right to re-employment in the LC.
      Priority for re-employment is only listed in Art. 25 as one of the elements to be considered in the framework of the consultation process.

    Severance pay and redundancy payment - 2019    

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    Severance pay:
    Remarks:
    • No general right to severance pay arising from dismissal based on reasons other than economic ones (see redundancy payment).
      Redundancy payment:
      Remarks:
      • Art. 28 LC: Any worker dismissed for economic reasons shall be entitled to redundancy payment which shall amount to 10 days' wages for each year of completed service up to a maximum of 6 months' wages in total.
      • tenure ≥ 6 months: 0 day(s)
      • tenure ≥ 9 months: 0 day(s)
      • tenure ≥ 1 year: 10 day(s)
      • tenure ≥ 2 years: 20 day(s)
      • tenure ≥ 4 years: 80 day(s)
      • tenure ≥ 5 years: 100 day(s)
      • tenure ≥ 10 years: 6 month(s)
      • tenure ≥ 20 years: 6 month(s)

      Notes / Remarks
      1) Non-economic dismissal: no severance pay
      2) Economic dismissal: redundancy payment

      Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2019    

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      Compensation for unfair dismissal - free determination by court: Yes

      Remarks:
      • Art. 20 LC.

      Reinstatement available: No

      Remarks:
      • The only remedy available for unfair dismissal ("licenciement abusif") is the payment of damages.

      Preliminary mandatory conciliation: Yes

      Remarks:
      • - Art. 207 LC: The dual mission of the labour jurisdiction is to settle the dispute by conciliation or adjudicate if conciliation fails.
        No further information in the LC as to the conciliation process before the labour tribunal.
        - In addition, preliminary extra judicial conciliation is available before the Labour Inspector if requested by either party. Such preliminary settlement is not mandatory if the employment relationship has been terminated (see Arts. 199 and 200 LC).

      Competent court(s) / tribunal(s): labour court

      Remarks:
      • Art. 205 LC.

      Existing arbitration: No

      Source of additional information - 2019    

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      Links

      Use of International Law by Domestic Courts (ICT-ILO) - Compendium »
      See cases under Madagascar

      Utilisation du droit International par les juridictions nationales (CIF- OIT) : recueil de décisions de justice (fr) »