DRC Law and Practice Contributed by: Aimery de Schoutheete, Serge Badibanga, Chloé Stassart and Trésor Badibake, Liedekerke
the other party may seek further compensation (dam - ages) before courts. 7.4 Termination Agreements Any employment contract may be terminated by a mutual consent agreement. There are no specific requirements involved. There are no statutory require - ments for enforceable releases or other limitations on termination agreement terms. 7.5 Protected Categories of Employee While there is no specific compensation regime (such as automatic lump-sum damages) for workers dis - missed on protected grounds, the Congolese Labour Code does provide certain protections for specific categories of employees, particularly in relation to dismissal. For example, women are protected against dismissal during maternity leave, and certain grounds are con - sidered invalid for dismissal (see 7.1 Grounds for Termination ), such as union membership or activities, political or religious beliefs, or HIV status. In addition, employee representatives (both elected and substitute delegates) benefit from enhanced pro - tection. Any dismissal or transfer that would result in the loss of representative status is subject to prior approval by the local labour inspector. If the employer alleges serious misconduct, they may suspend the delegate’s duties, but the dismissal only becomes effective after the labour inspector has issued a deci - sion. The employer must notify the labour inspector in writ - ing (by hand-delivered letter or registered mail with acknowledgment of receipt). The inspector has one month from receipt to issue a decision; if no decision is issued within that timeframe, approval is presumed. The inspector’s decision is subject to judicial review under conditions set by ministerial order. Except in cases of serious misconduct, the notice period for terminating a worker representative is twice the standard period, and not less than three months. Further, candidates for worker representation may not be dismissed from the time of submitting electoral lists
until the proclamation of election results. Unsuccess - ful or non-re-elected candidates continue to benefit from enhanced notice protections for a period of six months following the election. Employees who are dismissed for unlawful reasons or in breach of these protections may claim damages for abusive dismissal, up to a maximum of 36 months’ net salary. 8. Disputes 8.1 Wrongful Dismissal Grounds for a Wrongful Dismissal Claim The Congolese Labour Code flags some invalid dis - missal grounds: • affiliation or non-affiliation to a union, or participa - tion in union activities outside the working hours, or, with the employer’s consent, during the working hours; • soliciting, exercising or having exercised a worker representation mandate; • filing a complaint or participating in proceedings against an employer for alleged violation of the law, or bringing an action before the competent admin - istrative authorities; • race, colour, gender, marital status, family respon - sibilities, pregnancy, childbirth, religion, political opinion, national or social origin, ethnic group, HIV status; and • absence from work during maternity leave. In the event that a dismissal is based on one of these grounds, it will be deemed abusive. The list is non exhaustive, meaning that an employer must be careful when dismissing an employee and make sure that it has a valid ground for dismissal. Consequences of a Wrongful Dismissal In the event that an open-ended contract is termi - nated without valid cause, the employee is entitled to reinstatement. Failing this, the employee may claim damages, the amount of which is determined by the labour court. The court will consider factors such as the nature of the employee’s duties, seniority, age, and any acquired rights. However, such compensa -
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