DRC Law and Practice Contributed by: Aimery de Schoutheete, Serge Badibanga, Chloé Stassart and Trésor Badibake, Liedekerke
Congolese Labour Code, such as its date, object and the names and capacities of the contracting parties. It is drafted in as many originals as there are parties and must be signed by all the contracting parties. Six additional originals are subject to the visa of the Labour Inspectorate. One copy of the agreement is then filed at the clerk’s office of the labour court and one copy will be sent to the Ministry of Labour and Social Security for publication in the official gazette ( j ournal officiel ). Where a collective agreement has been published in the official gazette, the Minister of Labour and Social Security, on the Minister’s own ini - tiative or at the request of a trade union, may extend all or some of its provisions to all employers and work - ers pertaining to the same professional and territorial sector. The provisions of a collective agreement apply to all workers of the categories concerned employed in the undertaking(s) covered by the agreement, unless oth - erwise provided for in the collective bargaining agree - ment. Remedies in Case of Breach Breach of the agreed obligations stated in a collective bargaining agreement entitles the parties to an action for damages, the terms and limits of which may be stipulated in the collective bargaining agreement. Under the Congolese Labour Code, an open-ended employment contract may only be terminated by the employer for a valid reason related to the employee’s conduct or ability (physical or professional), or for rea - sons linked to the operational needs of the enterprise, establishment, or service. Valid grounds for dismissal include: • acts committed by the employee on the employer’s premises in the course of performing their duties; • acts committed outside the workplace but directly connected to the performance of their professional duties; and 7. Termination 7.1 Grounds for Termination
• organisational or economic needs of the employer. However, the Congolese Labour Code clearly states that certain grounds may not justify termination (see 8.1 Wrongful Dismissal ). As for fixed-term contracts, they automatically expire on the agreed termination date. Any clause allowing early termination by notice is null and void. Finally, an employment contract may also be termi - nated by mutual agreement of the parties, without prejudice to other provisions of the Congolese Labour Code. Termination Formalities Any termination must be notified in writing by the party who takes the initiative to the other party. Where ter - mination is at the employer’s initiative, the letter of notification must expressly state the reason for dis - missal. There is no motivation regime a posteriori. Termination of an open-ended employment contract without a valid reason entitles the worker to reinstate- ment. Failing this, the worker will be entitled to dam - ages fixed by a labour court (with a maximum amount equivalent to 36 months of the worker’s net salary). Any dismissal based on the operational needs of the company, establishment or service is subject to a specific procedure (complying with a hierarchy of dismissals, informing workers’ representatives, veri - fying compliance with the procedure by the Labour Inspectorate, etc). Where the employer is considering dismissing on grounds related to the worker’s ability or conduct, the employer must, before any decision is taken, allow the person concerned to present a defence. Collective Redundancies A Departmental Order sets out a specific procedure to be followed in the case of collective redundancies (called “massive” redundancies in Congolese law). A lay-off is to be considered collective if, within a peri - od of one month, it leads to the departure of at least:
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