The question of wrongful dismissal (often referred to by Arabic terms arbitrary dismissal or arbitrary dismissal) constitutes a major problem in Moroccan labor lawAlthough the employer has the right to terminate the employment contract, this right is not absolute and is subject to strict conditions. According to Articles 34 and 35 of the Labor Code, a dismissal must be based on a valid reason. The reason must be acceptable and the process must be carried out in accordance with legal procedures. established by the modawwanat ach-choghl. In the absence of a valid reason or in the event of non-compliance with these procedures, the dismissal may be considered abusive, entitling the employee to compensation.
The aim of this article is to provide a clear and detailed understanding of what a wrongful dismissal in Morocco. We will discuss the legitimate and illegitimate grounds for dismissal, the steps an employee must take in case of abuse, and above all, we will detail the Method for calculating the various allowances to which he is entitled. Our ambition is to equip employees with the necessary knowledge to fully understand their rights and defend them effectively in the face of an unjustified dismissal.
In the context of Moroccan labor lawThe fundamental question of whether an employer has the right to dismiss an employee is clearly addressed by the modawwanat ach-choghl (Labor Code). The Articles 34 and 35 This code stipulates that, although the employer has the option to terminate an employee's employment contract, this right is absolutely not discretionary or arbitrary.
For a dismissal to be considered legal and not abusive, two cumulative and essential conditions must be met:
In other words, even if an employee commits serious misconduct, if the employer fails to follow the legal procedures required for dismissal (for example, respecting the notice period), the termination of the contract may be deemed unfair. Conversely, the absence of a valid reason also renders the dismissal unfair. This strict framework aims to protect employees' rights against a potential unilateral and unjustified termination of their employment contract.
The Moroccan Labour Code distinguishes several types of reasons for which an employer may legitimately proceed with a dismissal:
On the other hand, a The dismissal is considered unfair. (Unfair dismissal or arbitrary termination) in the following situations:
It should also be noted that the law provides for cases where the employer himself commits a serious misconduct on the part of the employee, for example by exerting unjustified pressure, which may give the employee the right to consider their contract as terminated by the employer.
When an employee believes they have been the victim of unfair dismissal (الطرد التعسفي), one of the most crucial steps is the collection of solid evidenceWithout conclusive evidence, it becomes difficult to demonstrate to the competent authorities that the termination of the employment contract was unjustified or that legal procedures were not followed. The Moroccan Labor Code, through the modawwanat ach-choghlstrictly regulates the grounds and procedures for dismissal, which implies that any dispute must be substantiated.
Several types of evidence may be relevant to support the employee's case:
Gathering this evidence is a fundamental step that precedes any attempt at conciliation or legal action, because it is on the basis of this evidence that the legitimacy of the employee's complaint will be assessed by the authorities or the courts.
Once the evidence has been collected, the first formal step the employee can take is to request the intervention of theLabour Inspection (مفتش الشغل). Although this step is described as "optional and preparatory" (اختيارية تمهيدية), it is strongly recommended as it aims to find an amicable and quick solution between the parties.
The Labor Inspector, acting as mediator, schedules a hearing to which both the employer and the employee are invited. The main objective of this conciliation is to reach a consensual agreement (حل توافقي). Two main outcomes can result from this:
It is imperative to emphasize that Any conciliation agreement reached before the Labour Inspectorate must be formalized and signed. by both parties in front of the inspector. Without this formalization, the agreement has no legal value and cannot be invoked later in court.
If the conciliation phase before the Labor Inspectorate fails, that is, if no agreement is reached between the employer and the employee, the employee then has the option of to take legal action in the competent courts (The competent courts) pour faire valoir ses droits.
Before the court, and based on the evidence presented, the judge will examine the validity of the dismissal. If the court establishes that the employee was indeed the victim of an unfair dismissal, it will issue a judgment that may have two main outcomes:
In practice, reinstatement is less common, with most rulings awarding financial compensation to the employee, particularly given the deterioration of the working relationship, which often makes a smooth return to work within the same company difficult. This is why understanding and calculating these compensations becomes essential for the employee.
When the court determines that a dismissal is unfair, and if no amicable settlement can be reached with the Labor Inspectorate, the employee is entitled to several types of compensation. This compensation aims to redress the harm suffered as a result of the unjustified termination of the employment contract. There are primarily three categories of compensation paid by the employer, plus one paid by the National Social Security Fund (CNSS).
The calculation of these allowances is based on the last net salary received by the employeemore specifically the average salary of the last 52 weeks (approximately the last year of employment). It is crucial to note that if the employee received a salary lower than the Guaranteed Minimum Interprofessional Wage (SMIG), it is the amount of the minimum wage that will be used as the basis for calculation allowances, not the actual salary which is lower than the legal minimum wage. The hourly minimum wage is stated as being 14.81 dirhams.
Here are the different allowances and how they are calculated:
This compensation is due if the employer (or the employee) fails to respect the legally required notice period before terminating the employment contract. Its amount is equal to the remuneration that the employee would have received during the notice period that was not respectedThe length of the notice period varies depending on the employee's professional category and seniority:
This compensation is provided for by law.Article 41 of the Moroccan Labour CodeIt is calculated as follows:
This compensation is regulated by theArticle 52 of the Labour Code and concerns employees with permanent contracts (CDI) who have more than six months' seniority in the same company. Its calculation is more complex, being based on a number of hours per year of seniority, with progressive scales:
Unlike other compensation, this one is not not paid by the employer, but by the National Social Security Fund (CNSS)To be eligible, the employee must meet certain conditions related to their previous contributions. The payment of this allowance is limited to a period of six months.
It is important to note that Compensation for notice, damages, and dismissal is tax-exempt. for both the employer and the employee. The total amount the employee will receive is the sum of these various calculated allowances.
In short, the labor law Moroccan law offers a protective framework for employees in the event of unfair dismissal, guaranteeing avenues of appeal and financial compensation intended to mitigate the consequences of an unjustified termination of the employment relationship.
