The employment contract is the source of the relationship between the employee and his employer. It may be written or verbal. The conclusion of the contract of employment remains largely subject to the principle of the freedom of the Contracting Parties to choose, there is more for corollary free termination. Hiring trained to professional status membership fixed by law, which the mechanism and break conditions are an integral part.
Of the foregoing, the employer does not terminate the contract no matter how, the termination must be based on a real and serious reason.
Dismissal is compellingly notified to the employee by registered a letter or a letter delivered by hand. This letter shall state clearly the reason for the dismissal.
To find out if a dismissal is improper, please check two important elements: the content of the letter of dismissal and the cause of the dismissal.
The motivation of the letter of dismissal
The letter of dismissal is the centerpiece.
Regardless of the reasons for the dismissal (economic or personal), the letter of dismissal must be motivated that is to say explain the reasons for the dismissal. These reasons must be accurate and objective, i.e. physically verifiable.
If the letter of dismissal has no grounds for dismissal or if the termination reasons in the letter are not sufficiently precise and objective, the dismissal will be considered as abusive, that is to say devoid of actual cause and serious.
For even if the employee considers that he was fired for other reasons than those in the letter, he can prove the existence of this “hidden” motive.
For example, an employee fired for misconduct can demonstrate that his dismissal is due to a shameful pattern, such as his trade union activities or elements of his private life.
Requirement of a cause of dismissal
To be valid, the cause of the dismissal must be both real and serious. Otherwise, the dismissal is called unjustified or abusive.
- Requirement for a real cause of dismissal; three character of the real cause:
– The objective of the case character, to be objective, the cause of dismissal must result of external manifestations of audit. That is to say in practice, it should be based on materially verifiable complaints.
– The cause must exist, the cause alleged by the employer is not real unless the facts presented as ground breaking really exist.
– The cause must be accurate which means that the facts alleged, the reason articulated, must be the real reason for the dismissal.
- Requirement for a serious cause
A serious cause is a cause of some gravity, making it impossible without any harm to the company, the continuation of the work and makes necessary the dismissal. That the facts alleged, the grievances articulated, must be relevant enough to justify dismissal.
Unlike the dismissal of a personal nature which is based on the person of the employee: behavior (fault…), professional failure, etc., the dismissal of economic order is a dismissal carried out by an employer for reasons that are not related to the employee himself.
Compensation for a wrongful termination
The employer must strictly be careful during dismissal. Indeed, if the dismissal is described as abusive, the employer may pay a colossal amount. In accordance with the case-law consistency of the Supreme Court of Burundi, the employer risk only damages for unfair dismissal, for an employee who received a gross salary of 2 million and 10 years experience for example, an amount 120 million! Of course, there are additional damages if necessary.
Conclusion:The employer, like the employee, may be paying during a unilateral breach of the employment contract. However, the obligations affecting the employer are more heavy and varied as wrongful dismissal exposes the employer to pay the claims for the benefit of the employee in addition to allowances for wrongful termination, severance notice of paid and other leave.
Legal assistance by a lawyer of the labor law and human resources is essential to advise an employer wanting to proceed with a dismissal, but also to defend a wrongfully dismissed employee.