Employment 2022 Comparisons

The main change in Ivorian employment law throughout the past 12 months was in connection with teleworking.

Teleworking can now, at the request of the employee or on the proposal of the employer, (i) be introduced at the time of hiring in the company, (ii) concern employees who are currently working, or (iii) be implemented in cases of exceptional circumstances or force majeure.

Ivorian law does not make any distinction between white-collar workers or blue-collar workers. While, under the Ivorian Labour Code, reference is sometimes made to white-collar or to blue-collar workers these terms do not have any legal definition.

Ivorian law refers only to the status of “worker” or “employee”, both terms being considered equivalent.

Notwithstanding the above, Ivorian law distinguishes between workers in the agricultural sector and workers in non-agricultural sectors. This distinction affects mostly the applicable minimum wage and working hours.

Moreover, Ivorian law distinguishes the different types of workers as follows.

• Expatriate workers.
• Local workers such as:
1. seasonal workers;
2. part-time workers;
3. daily workers; and
4. full time workers.

The employment contract may be concluded for a fixed or indefinite period.

A fixed-term or definite-duration contract is a contract concluded between the employer and the employee for a term specified by the parties at the time of its conclusion. By law, any fixed-term contract shall indicate either the date of its completion or the exact period for which it is concluded. However, a fixed-term contract may be concluded without a specific term, provided that the said contract (i) results from the implementation of a specific and temporary task and or (ii) intends only:

• to ensure the replacement of a worker in case of their absence, the suspension of their employment contract or when waiting for the entry into service of a worker recruited under an open-ended contract;
• to respond to an occasional increase in workload or an unusual activity of the company;
• to fill seasonal jobs;
• to fill jobs in certain sectors of activity defined by decree or by agreement and for which it is common practice not to use open-ended contracts; and
• to last for the duration of a construction project.

Where the employment contract does not meet the requirements above, it shall be considered as an “open-ended contract” or “indefinite contract”.

In addition, both oral and written contracts are allowed. However, fixed-term contract must be in writing. Failure to comply with this requirement is deemed to result in the conclusion of an indefinite contract.

Moreover, any employment contracts shall include at least the following information:

• the date and place of the contract;
• the identity of both the worker and employer;
• the date and place of employment;
• the classification of the worker in the professional hierarchy, their salary and any additional benefits;
• if applicable, the duration of the trial period;
• the nature and duration of the contract; and

• the reference or regulatory texts to the collective agreements which govern all relations between employers and workers.

Under Ivorian law, the normal working hours are 40 hours per week, except for agricultural and related establishments, where normal working hours are set at 2400 hours per year and 48 hours per week.

Moreover, the normal daily working hours are fixed as follows:

• eight hours per day, during five working days of the week;
• six hours and 40 minutes per working day of the week; or
• an unequal distribution between the working days (Monday to Saturday).

In all cases, the duration may be exceeded by applying the rules relating to equivalence, overtime and recovery of lost working hours.

Flexible arrangements regarding working time are permitted. However, the labour inspector must be informed of any such arrangements.

Part-Time Work

Working time for part-time employees may not be less than 30 hours per week (or 120 hours per month).

Part-time employment contracts must always be in writing. They must include information on:

• the duration of the trial period, if applicable;
• the worker’s professional qualification;
• the elements of the remuneration;
• the weekly or monthly working hours;
• the allocation of the working hours over the week or month; and
• the conditions for possible modification of this allocation

In the absence of a written contract, the penalty may be reclassification of the contract as a full-time contract.

Overtime

Hours worked in excess of the legal working hours will be considered overtime and the worker will then be entitled to overtime pay.

Overtime pay is as follows:

• 115% for hours worked between the 41st and 48th hour;
• 150% for hours worked beyond the 48th hour;
• 175% for hours worked at night, and during the day on Sundays and public holidays; and
• 200% for hours worked at night on Sundays and public holidays.

Minimum Wage Requirements

The Ivorian law provides for two categories of minimum wages:

• the Minimum Interprofessional Guaranteed Wage (SMIG) applicable to non-agricultural sectors; and
• the Minimum Agricultural Guaranteed Wage (SMAG) applicable to the agricultural sector.

The SIMG is set at XOF60,000 whereas the SMAG is set at XOF36,000.

Entitlement to the 13th Month, Bonuses, Etc

The 13th month of salary or end-of-the-year bonus is an annual bonus paid to employees, which amount may not be less than 75% of the monthly conventional minimum wage for this category.

Workers hired during the year or who resign or are dismissed may also receive this bonus in proportion to their time of service in the reference year.

There are specific provisions regarding other types of bonuses that may be granted to workers.

Government Intervention

Government intervention is needed to set out the minimum wage. In this regard, it worth noting that the Ivorian government has been in negotiations with the private sector aimed at raising the minimum wages mentioned above since early August 2022. A final determination is expected to be made some time in September 2022. At the time of writing, such final determination has yet to be made.

Vacation Leave

An employee who has completed one year of service is entitled to paid leave, charged to the employer, at the rate of 2.2 days per month of actual service. The reference period for the calculation of the entitlement is from the date of hiring or return from the last leave to the last day before the departure for the new leave.

The employer must pay the worker, throughout the period of leave, an allowance at least equal to the amount of the salary and the various elements of remuneration. All the accessories to the salary such as bonuses, commissions, tips, gratuities, overtime and benefits in kind received by the worker during the last twelve months must be taken into account for the calculation of the allowance.

Furthermore, employees are usually entitled to paid leave on the following public holidays:

• National Day (7 August)
• Labour Day (1 May)
• January 1st;
• Easter Monday;
• Ascension Day
• Whit Monday;
• the end of Ramadan;
• Tabaski;
• August 15th;
• November 1st;
• November 15th;
• December 25th;
• the day after the Night of Destiny;
• the day after the birth of the Prophet Mohammed; and
• the day after the National Day, Labour Day, the Feast of Ramadan, the Feast of Christmas and the Feast of Tabaski whenever the said feasts fall on a Sunday.

Maternity Leave

The female employee is entitled to 14 consecutive weeks of maternity leave including six weeks before the expected delivery date and eight weeks after birth. The duration of this maternity leave shall be considered as a period of actual work for the determination of the employee’s rights based on her seniority.

A male employee is also entitled to two days of paternity leave.

Sick Leave

A worker who has been with the company for at least six months and who is affected by family events and who can justify this, is entitled to an exceptional leave of absence of up to ten working days per year.

Any absence due to a family event must be authorised in advance by the employer, either in writing or in the presence of a staff representative. In the event of force majeure making prior authorisation by the employer impossible, the documents justifying the absence must be presented as soon as possible and, at the latest, within 15 days of the event.

Short-term absences justified by a serious and unforeseen event duly recorded, directly affecting the worker’s household (such as a fire or serious illness of the spouse), authorise the suspension of the employment contract without pay, provided that the employer has been informed at the latest within four clear days and that the duration of the absence is in line with the event that motivated it.

Validity of the Non-competition Clause

In principle, any clause in a contract prohibiting the worker from engaging in any activity at the end of the contract is automatically null and void. However, insofar as it runs contrary to the constitutional principle of freedom of work, the non-compete clause must, to be valid, (i) be justified by the company’s legitimate interests and, therefore by the position held by the employee; (ii) be limited in time and space; and (iii) contain financial compensation.

Enforcement

The labour courts may order any measures necessary to put a stop to the competition. The employee may be ordered, under threat of penalty, to stop any competing activity.

An employee who fails to observe the non-compete clause may also be ordered to pay damages as compensation for the harm suffered by their former employer. It should be noted that the new employer who hires the employee concerned with the knowledge of the existence of the clause may also be ordered to pay damages.

The non-compete clause may be accompanied by a penalty clause; ie, one which specifies in advance the amount of compensation that will be owed by the employee if the non-compete clause is breached.

When a worker, having wrongfully terminated their employment contract, takes on a new position, the new employer is jointly and severally liable for the damage caused to the previous employer in the following three cases:

• when it is shown that the new employer intervened in the poaching;
• when the new employer hired a worker whom it knew to be bound by a contract of employment (it must therefore ensure that the worker is not bound by a contract of employment or, if the worker indicates that they have broken it, that they are free of any commitment on the date on which they are due to take up their duties); and
• when the new employer continues to employ a worker after learning that the worker was still bound to an employer by an employment contract.

However, in the last case, the new employer is not liable if, at the at the time of notification, the employment contract wrongfully terminated by the employee had expired, either by the end of the contract, in the case of a fixed-term or, in the case of a contract of indefinite duration, by the expiry of the notice period or if a period of 15 days had elapsed since the termination of the contract.

Law 2013-450 on the protection of personal data is the main regulation in Côte d’Ivoire regulating data privacy.

Employers are entitled to implement a comprehensive compliance programme in order to meet the many requirements provided for by this regulation with respect to the use of their employees’ personal data (implementation of privacy principles including fairness, transparency, minimisation, data security, running prior data protection impact assessments for sensitive processing, drafting policies, documenting processes, etc).

Employees are also entitled to ask their employer whether and how their personal data is being processed. They can also request a copy of such data in plain language. Theoretically, this right is unconditional, provided that the request is not manifestly abusive.

Subject to necessity, Ivorian-based employers can transfer employees’ personal data if they have obtained prior authorisation of the regulatory authorities. Failure to comply with data protection law may expose the employer to the following sanctions:

• a pecuniary sanction of XOF10 million – in cases of recidivism within five years from the date of the previous penalty, up to XOF100 million or 5% of the turnover excluding tax of the last financial year to a maximum of XOF500 million;
• administrative sanctions – the temporary withdrawal of the authorisation and the final withdrawal of the authorisation; and
• criminal sanctions – pursuant to Article 24 of Fight Against Cybercrime Law 2013, processing personal data by fraudulent, unfair or unlawful means is punishable with one to five years of imprisonment and a fine of between XOF5 million and XOF100 million.

The recruitment of a foreign worker, non-ECOWAS national (ie, not a citizen of one of the constituent countries of the Economic Community of West African States), is contingent on the following limitations among others:

• a residence permit, whose issuance is subject to the production of an employment contract;

• a work visa, whose issuance is subject to the production of a residence permit;
• a visa, which is issued by the Minister in charge of Employment on the employment contract or letter of appointment of the foreign citizen before their admission to Côte d’Ivoire; and
• any employer wishing to recruit a foreign worker can do so only if no local candidates has met the qualifications set forth in the job vacancy.

Subject to other requirements set forth in the immigration law and international conventions entered into by the State, the above-mentioned limitations do not apply to

• foreign workers paid on results, unless they are employees ;
• executive-level managers;
• agricultural workers; and
• domestic workers.

The residence permit is compulsory for all foreign workers, as of three months after their hiring.

Role of Unions

Trade unions act as employee representatives in all labour-related issues between an employer and an employee. In that regard, they have free access to the employment premises, can communicate freely with employees, can organise meetings with union members, negotiate collective bargaining agreements with the employer, etc.

By law, any employees or employers may freely join or constitute trade unions in sectors of activity and geographical sectors which they determine. They shall have the right to join a union and to leave the performance of their duties if they have held office for at least one year.

Status of Unions

Trade unions are free to draw up their statutes and rules of operation and freely define their programme of action and activities.

The founders of any trade union shall deposit at the municipality, or at the seat of the district where the trade union is established, the statutes and names of those who, in any capacity, are responsible for its administration or management. A copy shall be addressed to the Inspector of Labour and Social Laws and to the Public Prosecutor. A final copy is deposited with the company’s management for information.

The staff delegates are responsible for:

• presenting to the employers all individual or collective complaints which have not been satisfied concerning the working conditions and protection of workers, the application of collective agreements, classifications and wage rates;
• referring to the Labour and Social Affairs Inspectorate any complaint or claim concerning the application of the legal or regulatory provisions which it is responsible for ensuring are respected;
• ensuring, in undertakings where there is no Occupational Health Committee, the application of the provisions relating to the health and safety of workers and to social welfare, and to propose any useful measure on this respect; and
• communicating to the employer any suggestion for the improvement of the organisation and performance of the company.

The powers of the staff delegates shall not have the effect of depriving the workers of the possibility of presenting their complaints and suggestions to the employer themselves.

When the number of employees in the establishment reaches 11, the election of staff delegates becomes compulsory. Staff delegates are elected in each company or establishment for a period of two years and are re-eligible.

The number of delegates to be elected depends on the number of staff. It is set as follows:

• from 11 to 25 workers – one full delegate and one substitute;
• from 26 to 50 workers – two full delegates and two substitutes
• from 51 to 100 workers – three full delegates and three substitutes
• from 101 to 250 workers – five full delegates and five substitutes;
• from 251 to 500 workers – seven full delegates and seven substitutes;
• from 500 to 1000 workers – nine full delegates and nine substitutes; and
• one full delegate and one substitute for each additional 50 workers.

A collective bargaining agreement is an agreement on employment and working conditions concluded between, on the one hand, the representatives of one or more trade unions or professional groups of workers and, on the other hand, one or more employers’ trade unions or any other group of employers or one or more individual employers. Such agreement may contain clauses more favourable to workers than the laws and regulations in force. But it may not derogate from the provisions of public policy defined by these laws and regulations.

The collective agreement is concluded between the employers’ and workers’ trade unions’ representative.

The collective agreement shall be drawn up in writing, on plain paper and in the French language. It shall be signed by each of the contracting parties and shall be deposited at the clerk’s office of the relevant labour court or at the clerk’s office of the detached section of the court of first instance by the most diligent party, at joint expense and in triplicate.

The collective agreement shall apply from the day of its deposit at the court registry.

A fixed-term contract may only be terminated before the end of the initial term on the following grounds: (i) force majeure, (ii) mutual agreement of the parties, or (iii) gross misconduct.

Termination of an indefinite contract may be related to the employee’s performance, whether it be their state of health, fitness for the job, professional inadequacy or misconduct.

An employer who dismisses for personal reasons must notify the employee of the decision in writing. The notification of dismissal is made by registered letter with acknowledgement of receipt or by hand-delivered letter against receipt, in the presence of the staff representatives or in front of witnesses. In the event that notification is made impossible by the employee, the termination shall be validly notified to a staff representative of the company with a copy to the Labour and Social Affairs Inspector.

In addition, dismissal may result from redundancy. Otherwise, due to a job loss or transformation, in particular as a result of technological change, restructuring or economic difficulties likely to jeopardise the financial equilibrium of the company.

An employer who plans to dismiss more than one worker for economic reasons shall hold an information and explanation meeting with the staff representatives, who may be assisted by representatives of their trade unions.

The employer sends the National Council for Social Dialogue, the staff delegates and the Labour and Social Affairs Inspector, at least fifteen working days before the meeting, a file specifying the reasons for the planned redundancy, the criteria used by the company, the list of staff concerned, the date of the dismissal as well as the date of the redundancy, and any documents needed to assess the situation.

Employers are required to give notice of termination except in the case of gross misconduct or negligence.

The notice period is fixed by the law, the collective agreement and/or the employment contract. The notice period is generally between one and four months. The length of the applicable notice period varies depending on the employee’s classification, tenure in the company and, sometimes, age. No notice is required in the case of the expiry of a fixed term of employment.

Severance

The termination of an employment contract initiated by the employer entails, for an employee who has completed a period of service equal to one year and who has not committed a gross misconduct, the payment of a redundancy allowance separate from the notice period. The rate of severance pay corresponds, for each year of presence in the company, to a percentage applied on the basis of the total monthly salary for the twelve months of activity preceding the dismissal.

This percentage is set at

• 30% up to and including the fifth year of seniority;
• 35% for the period from the sixth to the tenth year; and
• 40% thereafter.

Apart from the severance, dismissed employees are also entitled to other compensation.

Gross misconduct may include acts or behaviour of an employee related to their duties which make it intolerable for them to remain in the company.

The employee dismissed for gross misconduct is not entitled to notice period and severance pay.

Prior to any sanction, the concerned worker must be given the opportunity to explain themselves in writing or verbally within 72 hours of receiving the request for an explanation. If the explanations are verbal, the employee may be assisted by one, two or three staff representatives. These explanations are transcribed by the employer in the presence of the staff representatives who attend the interview. The employee reads the transcript and signs it. It is then countersigned by the employer and the persons who assisted the parties. Then, the employer shall notify the employee of the sanction within 15 working days from the date of receipt of the written explanation. A copy of the decision, together with the request for explanations and the written explanations of the worker (or, presumably, the transcript), is sent to the Labour and Social Affairs Inspector and to the staff representatives.

The employer and the employee can agree on a negotiated termination of the employment contract, which can only be challenged under the conditions of civil law. The law does not specify the terms of the negotiation between the parties. It does not impose a minimum amount of compensation to the employee, equivalent for example to the redundancy payment that would have been due if the employee had been dismissed. However, when a negotiated termination of the employment contract is part of a downsizing operation for economic reasons, it must be announced in the same way as redundancies, at the information and explanation meeting.

The following persons enjoy special protection against dismissal:

• staff representatives;
• pregnant women;
• disabled workers; and
• to some extent, workers on sick leave.

In Côte d’Ivoire, dismissal is considered as wrongful when it does not respect the conditions laid down by law.

The law provides three types of claims for wrongful dismissal, as set out below.

Unfair Dismissal

This is when the dismissal is not well grounded (licenciement sans cause réelle et sérieuse or licenciement injustifié). When the dismissal is deemed to be unfair, the employee may benefit from the payment of damages, depending on length of service within the company.

Null and Void Dismissal

This is when the law prohibits dismissal in the specific situation (licenciement nul). When a dismissal is declared null and void by judges, the employee has the option to be reinstated. Whenever the reinstatement is impossible or if the employee does not wish to be reinstated, the latter is entitled to be granted damages. In all cases, the employee shall receive payment of salary from the date of the dismissal until the date it is declared null and void.

Dismissal Without Proper Procedure

This is when the required procedures have not been followed (licenciement pour motif économique). In this case, the employee is entitled to an indemnity ranging between three months’ gross salary at minimum and twenty months’ gross salary at maximum. Such indemnity cannot be combined with damages for unfair dismissal.

Protection from discrimination benefits employees, interns and apprentices, as well as candidates for these positions. Discrimination can be direct or indirect. Direct discrimination refers to a situation where one individual is treated in a less favourable manner than another in a comparable situation because of a protected characteristic, such as sexual orientation, religious beliefs or ethnic origin. Indirect discrimination occurs when a measure that appears neutral is detrimental to an individual because of a protected characteristic.

The principle of equality of treatment, which revolves around the principle of “equal work, equal pay”, should not be confused with the principle of non-discrimination.

Grounds for claims of discrimination may be related to ethnic origin, sex, age, marital status or pregnancy, genetic characteristics, a particular vulnerability resulting from the claimant’s economic situation, political opinions, religious convictions, physical appearance, family name, place of residence, or state of health.

The employer and employee share the burden of proof. For both direct and indirect discrimination, the employee must present factual information that suggests the existence of discrimination and the employer must then demonstrate that the potential differential treatment, if any, is justified by objective factors unrelated to any discrimination.

The employer can also justify a discriminatory measure:

• by proving that the said measure meets an essential and determining professional requirement and that the objective is legitimate while the requirement is proportionate, when accused of direct discrimination; or
• by proving that the said measure has a legitimate purpose, and that the means to achieve the end are necessary and appropriate, when accused of indirect discrimination.

An employee suffering from discrimination can seek damages and remedies from a labour court and may also file a criminal complaint against the employer. The employee who is discriminated against is also entitled to terminate their contract of employment because of the misconduct of the employer (prise d’acte), which may be qualified by the judges as a null and void dismissal, with all the consequences that this entails (see 8.1 Wrongful Dismissal Claims).

In Côte d’Ivoire, a dispute in employment law leads, depending on its subject matter, to judgments or rulings by different types of courts.

A dispute related to an employment contract (performance, termination, etc) or to an employee’s working conditions (harassment, discrimination, etc) is generally dealt with before the competent labour court. Courts are composed of elected lay judges. Appeals against decisions of a labour court may be lodged with the appeal courts, and the latter’s decision may be appealed to the Court of Cassation.

Disputes relating to employee representative bodies’ elections or arising from the application of social security law have to be brought before an ordinary civil court.

Disputes relating to decisions made by the labour administration fall under the jurisdiction of administrative courts. These decisions may, for instance, relate to the validity of a redundancy plan or an authorisation to terminate the employment contract of employees exercising representative functions.

Class Actions

Representative unions can initiate class actions for the benefit of employees working for the same employer. However, these claims are limited to discrimination and data privacy.

Representation in Court

Legal representation is not mandatory before a labour court. The parties can bring and take part in proceedings without representation by an attorney. A qualified person – such as another employee from the same company or business sector, a registered union defendant, an attorney, a person with whom a claimant is living as part of a couple, or the mother, father or legal representative in the case of a minor – can represent absent parties. In some cases, the labour court can adjudicate on the dispute on the sole basis of evidence if a party is absent or not represented. However, before the court of appeal or the Court of Cassation, the presence of an attorney is mandatory.

There is no provision in Côte d’Ivoire for arbitration on individual employment matters. Arbitration clauses in employment contracts are unenforceable as labour courts have exclusive jurisdiction over disputes relating to employment contracts.

However, arbitration is possible for conflicts arising from collective issues in accordance with the Article 82.10 of the Labour Code.

Where the parties agree to submit the dispute to arbitration, they are obliged to enforce the award. They shall specify whether they intend to have recourse to the appointment of a sole arbitrator or an arbitration committee composed of a judge and two arbitrators.

The sole arbitrator or the members of the arbitration committee shall be appointed by the parties or, in the absence of an agreement between them, within five working days of the submission of the dispute to arbitration in accordance with the conditions laid down by decree.

The prevailing party can be awarded its attorney’s fees paid by the other party in the amount determined by the judge. If the prevailing party benefits from legal aid, the payment is made directly to the lawyer of the beneficiary. The amount determined by the judge must take account of equity and the economic situation of the unsuccessful party, and the court may even waive the award of attorney’s fees.