DRC Law and Practice Contributed by: Serge Nawej Tshitembu, Xavier Huberland, Daniel Yamba and Katerina Papachristou, ProximA International
or mixed. While the Labour Code does not clear - ly distinguish between “employees” and ”work - ers”, legal doctrine interprets “workers” as indi - viduals performing primarily physical or manual tasks (eg, labourers, construction workers) and ”employees” as those engaged in administra - tive, technical or intellectual tasks. For children under 18 and persons with disabili - ties, daily working time is limited to four hours, and night work is prohibited. Also, certain categories of workers are expressly excluded from the standard legal working time regime, such as individuals working exclusively at their own residence without external assis - tance and executive personnel (meaning mem - bers of staff entrusted with independent deci - sion-making authority that significantly impacts the operation of the enterprise, as well as those who organise their work schedule autonomously without being subject to daily hierarchical super - vision). In principle, any work performed beyond the legal working time qualifies as overtime and must be compensated accordingly. Unless oth - erwise exceptionally authorised, such overtime must be pre-approved by the Labour Inspector - ate and must be justified by legitimate business needs. The applicable overtime pay rates are as follows: • 30% increase for each of the first six hours worked beyond the legal weekly limit; • 60% increase for each additional hour there - after; and • 100% increase for hours worked during statu - tory rest days (Sundays and public holidays).
Night work is defined as any work performed between 7pm and 5am (except for children and persons with disabilities, for whom the night period is extended from 6pm to 6am). Two remu - neration regimes apply to night work: • a flat-rate increase of 10% of base salary is granted to workers employed in positions that, by their very nature, can only be per - formed at night; and • a 25% increase per hour is applied to any night work performed in establishments oper - ating during both day and night. 4.4 Termination of Employment Contracts The termination of employment in the DRC is governed by a protective legal framework under the Labour Code and its implementing regula - tions. Unlike jurisdictions where employment-at- will is permitted, Congolese law requires justi - fied grounds and formal procedures for ending employment, whether individually or collectively. Individual Dismissal Employment contracts may only be terminated in specific situations: • During the probation period: (a) within the first three days without justifi - cation or notice; (b) at the end of an inconclusive trial; or (c) at any time during the trial period, for cause linked to performance or conduct, subject to a three-day notice. • At the employer’s initiative, termination is permitted for objectively valid reasons relating to the employee’s competence or conduct, excluding gross misconduct. The employee must be offered a right of response before any decision is finalised.
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