The COVID-19 pandemic led the Government of Senegal to take several measures to restrict freedoms, ban travel and close borders.
In this context, on 1 April 2020, the National Assembly passed Act No. 2020-13 empowering the President of the Republic to take certain legal measures by ordinance, pursuant to article 77 of the Constitution of Senegal.
By virtue of this act, the president signed Ordinance n° 001-2020 of April 8th, 2020, which provides for derogative measures regarding dismissals and reorganization of lay-off schemes during the period of the COVID-19 pandemic.
This ordinance aims, on the one hand, to restrict the prerogatives of employers in relation to their rights to terminate employment contracts, and, on the other hand, to guarantee an income to employees facing lay-off.
This ordinance raised concerns from the employers, most of whom were already taking steps to dismiss, or lay-off employees, in order to face the constraints imposed by the pandemic.
The purpose of this note is to (i) shed light on the content of this ordinance, and (ii) analyse how it restricts the power of employers to dismiss or to suspend employment contracts in Senegal, as outlined in the Labor Code.
1. Scope of the ordinance
Material scope of application
The ordinance addresses mainly the grounds for dismissal provided for in Articles L.49, L.60 and L.214, and the lay-off scheme provided for in Article L.65 of the Labor Code, in particular with regard to income.
Time scope of application
From a time scope point of view, the ordinance has been applicable retroactively since 14 March 2020 for the entire duration of the pandemic.
2. Derogatory measures
Grounds for dismissal
Article 1 of the ordinance provides that, throughout the COVID-19 pandemic, any dismissal other than that motivated by gross misconduct on the part of the worker is null and void.
Consequently, only dismissal for gross misconduct is accepted, it being specified that the classification of gross misconduct is left to the discretion of the judge.
Thus, obviously any attempt to circumvent the law in order to decide dismissal for gross misconduct requires caution.
Consequently, any dismissal pronounced other than for gross misconduct is null and void.
Needless to say, an employer who had taken dismissal measures other than those motivated by gross misconduct is obliged to reinstate the workers concerned.
The ordinance also revises the provisions on lay-offs provided for in article L.65 of the Labor Code in order to guarantee a minimum level of resources for workers in a situation of lay-off.
The former article L.65 provided that the employer may, after consulting the staff representative, decide to lay off all or part of the company's staff.
In the absence of a regulation in the applicable collective agreement or in the establishment agreement, prior validation of the labor inspector was required. An agreement between the parties could specify the duration and, where appropriate, the remuneration.
However, Article 2 of the ordinance states that “the employer must seek alternative solutions with the staff delegates or, failing that, staff representatives, such as reducing working hours, shifting work, anticipating paid holidays, redeployment of staff, part-time work.”
So, there are two possibilities for the employer: either the adoption of alternative measures, or a lay-off.
- If alternative measures are adopted, the remuneration may not be less than the guaranteed interprofessional minimum wage or 70% of the average net wage for the last three (3) months of activity.
- On the other hand, if the employer decides to resort to a lay-off, the duration of the latter may not exceed the time limits of the ordinance, it being specified that it lasts three (3) months as from 2 April 2020.
During this period, the worker shall receive remuneration which shall not be less than either the guaranteed interprofessional minimum wage or 70% of his/her net average wage for the last three months of activity.
Support from the state
The Senegalese State has planned to support companies that have adopted lay-offs with the assurance of remuneration to the worker.
Duties of the laid off employee
The employee is still subject to the subordination relationship and is therefore obliged to remain at the disposal of his/her employer throughout the period of inactivity.
The employer may occupy him or her with occasional work in his or her field of competence.
Otherwise, he loses his right to remuneration as defined above.