Sidi Slimane Court of First Instance, Mounir Ouharro C. v. Ismaïl Alaoui, 25 May 2005, No. 58/2005
Constitution of the Kingdom of Morocco
Preamble
(…) Conscious of the need to carry out its activities within the framework of the international organizations of which it is an active and dynamic member, the Kingdom of Morocco adheres to the principles, rights and obligations stemming from the charters of those organizations and reaffirms its recognition of universally recognized human rights. (…)
Article 31, paragraph 3
Treaties that might bring into question provisions of the Constitution are approved in accordance with the procedures provided for making changes to the Constitution.
Preamble
This Labour Code complies with the fundamental principles laid down by the Constitution and with international standards such as those set out in the conventions of the United Nations and of its specialized agencies in the field of labour.
(…)
Established rights whose exercise within and outside a business activity is guaranteed by this law include the rights contained in ratified international labour conventions and the rights established in the main conventions of the International Labour Organization, which include the following: (a) freedom of association and protection of the right to organize and bargain collectively, (b) prohibition of all forms of forced labour, (c) effective elimination of child labour, (d) prohibition of discrimination in terms of employment and profession and (e) equality of remuneration.
(…)
Where legal texts contradict each other, priority shall be given to those more favourable to employees In settling individual or collective labour disputes, the order of priority shall be the following: The relevant provisions of this Code and of ratified international conventions and charters; Collective agreements; The work contract; Arbitration decisions and case law; (…)
Morocco
Dismissal
Reference to international law to strengthen a decision based on domestic law
Ratified treaty1
Dismissal of an employee without valid justification/ Disregard for the procedure for termination of employment/ Reference to international law to strengthen a decision based on domestic law
The facts concern dismissal of an employee after three years of employment by a business providing a telephone service. The employee claimed unjustified dismissal because of the absence of a valid reason and inobservance of the provisions of the Labour Code concerning termination of employment. In addition to damages, the worker requested payment of the difference between the salary he was paid and that which he would have received at the rate of the legal minimum wage, plus compensation for dismissal, seniority benefits, various other payments in compensation for holidays and paid absences that he was denied and loss of employment. The Court pointed out the unjustified nature of the dismissal and accepted most of the plaintiff’s arguments based on provisions of the Labour Code, which the Court reinforced by referring to ILO Convention No. 158 on Termination of Employment.
The defendant held that the plaintiff was temporarily self-employed, purportedly took money from the téléboutique and voluntarily left his employment after the discovery of that act and the bringing of charges against him in court. As a result, the defendant contested the term “unjustified termination of an employment contract” and requested the Court to defer a decision pending the outcome of the criminal case, the major aspect of this case, and to reject the plaintiff’s request for lack of a legal basis and serious merit, as an ancillary matter.
After careful examination of the facts, the Court ruled that there had been an employment relationship between the parties and that its rupture had in fact occurred. Concerning the allegation of abandonment of employment, the Court recalled that according to the Labour Code an employer bears the burden of proof. The Court felt that the unjustified nature of the dismissal was established by the sole fact of the non-application of the legal procedure, which specifically provided for written notification of dismissal owing to serious misconduct within 48 hours of that decision and the prior hearing of the worker. In this regard, the Court referred to the provisions of the Labour Code and ILO Convention No. 158 in the following terms:
“An allegation of voluntary abandonment of employment must be established by an employer in accordance with Article 63, paragraph 2; something that the defendant did not do. Any serious misconduct purportedly committed by the employee according to the defendant should have been sanctioned by disciplinary termination of employment in accordance with the provisions of Article 61 of the Labour Code, which, furthermore, would have given the employee the possibility of defending himself at a hearing in accordance with Article 62. Likewise, Article 63 provides that written notification of a dismissal be given to the employee within 48 hours from the time that decision is taken. The defendant did not do that. That resulted in a lack of a legal basis for the dismissal even if the employee had committed the alleged theft, since the above-described procedure for termination of employment was not followed.
It should be pointed out in this regard that the provisions of the above-mentioned Labour Code are backed up by ILO Convention No. 158 concerning termination of employment, ratified by Morocco on 7 October 1993, which in its Article 4 declares that “The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”, and which in its Article 7 declares that “The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity” (…)”
On the basis of the Labour Code, backed up by ILO Convention No. 158, the Court of Sidi Slimane thus determined that, given the absence of an opportunity to defend himself and of written notice of termination, the employee’s dismissal was unjustified.
1 ILO Convention on Termination of Employment, 1982 (No. 158).
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