Sources of regulation
The sources of law on termination of employment in Guinea are:
- the Labour Code (LC), as promulgated by Ordinance No. 003/PRG/SGG/88 of 28 January 1988 and amended lastly in 1996, and
- Ordinance No. 1387/MASE/DNTLS/90 of 15 May 1990, on minimum severance allowance.
Scope of legislation
The Labour Code applies to workers and employers engaged in work in the Republic of Guinea. Public servants are, however, excluded from the scope of these provisions (sec. 1, LC).
Contracts of employment
An individual who signs an employment contract thereby undertakes to work for another and agrees to do so under the authority of that person in exchange for remuneration (sec. 3, LC). An employment contract may not be concluded with any person who is not at least 16 years of age (sec. 5, LC).
An employment contract may be concluded for an indefinite or specified duration (sec. 4, LC).
A fixed-term employment contract cannot be concluded for a period exceeding two years. Beyond this period of time, the contract is deemed to be of indeterminate duration. A contract for a period of less than two years may be renewed, provided that the duration of the renewed contract does not exceed that of the initial contract and the duration of both contracts does not exceed two years (sec. 13, LC).
Termination of employment
The contract of employment can terminate, not at the initiative of the employer, in certain circumstances, including by:
- the expiry of a fixed-term contract. If the contract is for a period of more than two months, the employer must notify the employee ten days before expiry. If it is for more than six months, this notification period is to be extended to 20 days. If the employer fails to serve advance notice within this period of time, the contract is thereafter considered to be of indeterminate duration and subject to the relevant regulations governing termination of contracts of this nature (sec. 70, LC);
- the mutual agreement of the parties. The termination of contact of employment of indefinite duration, as well as an early termination of a fixed-term contract, by mutual agreement of the parties is permissible, provided that such agreement is put in writing, drawn up in the presence of a labour inspector and signed by both parties, (secs. 73, 75, LC); and
- force majeure (secs. 73, 77, LC).
Dismissal
In the absence of agreement between the parties, fixed-term contracts of employment may be terminated by the employer before the term specified only in case of employee’s serious misconduct or force majeure (sec. 73, LC).
If an employment contract of indefinite duration is terminated at the initiative of the employer, this is deemed to be a dismissal. An employee may not be dismissed, unless there is an objectively verifiable reason rendering it impossible to maintain the employment relationship (secs. 74 et seq., LC).
The reason for dismissal may be ascribable to the worker himself or herself, due either to ill health, inaptitude, unsatisfactory performance, or misconduct. In such cases, the termination of employment is deemed to be for “personal reasons” (sec. 79, LC).
If the dismissal is connected to the organization, restructuring, or closure of the undertaking, it is considered termination of employment for “economic reasons” (sec. 80, LC).
The constructive dismissal is recognized under Section 76 of the LC.
Sections 57-58 of the LC regulate dismissals due to worker’s absence for illness.
Notice and prior procedural safeguards
An employer, who proposes to dismiss a worker, must first summon the worker by a registered letter to an interview. The letter of summons must reach the worker not later than five days before the interview. The summons must include a statement of the reasons for which dismissal is being contemplated. The worker may be assisted or represented by a person of his or her choice, who may be a member of staff or of the trade union to which he or she is affiliated. The employer must observe a two-day period of reflection following the interview before making the decision of whether or not to dismiss the worker (secs 83 et seq., LC).
An employer who decides to dismiss a worker must serve notice of such dismissal by a letter, hand-delivered to the worker concerned and indicating the reason of the dismissal, not before the third day following the interview (sec. 85, LC).
The termination of an employment contract of indefinite duration is subject to a period of advance notice, depending on the occupational category of the worker (sec. 94, LC), as follows:
- three months for middle managers and similar categories;
- one month for supervisors and foremen; and
- a fortnight for operational staff.
If a worker is dismissed because of serious misconduct, he or she is not entitled to a period of advance notice (sec. 99, LC).
Any proposals for dismissal for economic reasons must be submitted to the trade union representatives of the enterprise concerned for assessment. Seven days before the first meeting, the employer must provide the union delegates with a statement of the reasons for the dismissals contemplated, the number and grades of the workers likely to be dismissed, the period over which notice of termination is likely to be served, as well as the steps taken to minimize the number of dismissals and to assist the workers in finding alternative employment. The statement must also be sent to the labour inspector. After the seventh day following the initial meeting, a second meeting is held with union representatives during which the employer must present the final draft list of dismissals contemplated and if any proposals made by the union delegates have been rejected, set forth the reasons for that rejection. After the meeting, the employer must notify the labour inspector of his or her definitive list of dismissals contemplated and state therein the names and grades of the persons to be affected, the dates of notification of termination and the steps taken to assist in reassigning the persons affected (secs. 87 et seq., LC). The employer then must respect the procedure vis-à-vis each worker to be dismissed, which is similar to that for individual dismissals for personal reasons.
Where the terminations being contemplated are to affect fewer than ten workers, the statement must be submitted to the labour inspectorate for information purposes. If ten or more workers are to be affected, the labour inspectorate may oppose to the implementation of the plan for dismissal within a fortnight after submission of the statement (secs. 89-90, LC).
Severance pay
Upon expiry of a fixed-term employment contract, the employer has to pay the worker a severance allowance equivalent to 5 per cent of the total wages and allowances accrued to the worker during performance of the contract (sec. 71, LC).
Employees having worked for at least 12 months are entitled to severance pay (sec. 100, LC). The rules of its of calculation are set forth in Ordinance of 15 May 1990 The minimum compensation cannot be lower than an amount calculated, per year of service to the undertaking, on the basis of 50 hours’ wages for hourly paid workers and 25 per cent of a month’s wages for monthly paid workers. The wages on which the calculation of the compensation is based are those paid over the last three months prior to dismissal. For periods longer than a full year, all months worked must be taken into account in the calculation of the amount of annual compensation on a pro rata basis using the number of months worked divided by the 12 months of the year.
Where the death of the employer leads to the closure of the undertaking, workers are entitled to compensation in lieu of notice, severance pay and compensation in lieu of leave not taken (sec. 116, LC).
Avenues for redress
Disputes on termination of employment contracts must be referred to the Labour Court and the burden of proof is on the employer (sec. 81, LC).
If there is premature termination of a fixed-term contract by the employer, without worker’s serious misconduct, the worker is entitled to compensation equal to the remuneration that he or she would have received until the expiry of the contract (sec. 73, LC).
If an employer does not fulfil his or her obligation to serve advance notice, he or she may be ordered to pay the worker compensation for loss of wages and other benefits that the worker would have received during the entire period of notice (sec. 98, LC).
In case of dismissal without good reason, the Labour Court may oblige the employer to pay the worker compensation at least equal to six months’ wages (sec. 82, LC).
If an employer does not observe the rules of procedure, he or she can be ordered to pay the dismissed worker compensation equivalent to three months’ wages (sec. 86, LC).
Any dismissal for economic reasons, to which the Labour Inspector has opposed, can be declared null and void by the Labour Court. The Labour Court may order that the workers be reinstated and that the employer pay each worker compensation corresponding to the total damages suffered by the worker in the time elapsed between dismissal and reinstatement (sec. 93, LC).
In case of violation by the employer of specific provisions protecting the workers during pregnancy and/or maternity leaves, the Labour Court can order the reintegration of the worker or payment of compensation equal to two years’ wages (sec. 63, LC).
Further information
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