Dismissals and Termination of Employment in Mozambique

The dismissal of an employee is, in the strict sense, always motivated by the violation of certain legally stipulated duties, which constitute disciplinary offences, under article 59 and article 67/1, both of Law no. 13/2023, of 25 August, the Labour Law.

It must always be preceded by the initiation and conduct, until the end, of a Disciplinary Process by the employer, within the scope of its disciplinary power, under article 63/2, of the same law.

On the other hand, the labour relationship can be terminated by terminating the Employment Contract when there is always just cause - which is generally considered to be serious facts or circumstances that make it morally or materially impossible to maintain the established contractual relationship (Cfr. article 138/1, of the Labour Law).

The Disciplinary Procedure to be instigated and conducted has, under the terms of Article 70/1 of the Labour Law, 3 (three) phases:

1. Accusation phase: after the date of knowledge of the offence, the employer has a period of 30 (thirty) days, without prejudice to the 6 (six) day limitation period for the offence, to send the employee and the Trade Union Committee in the company, or failing that, the Trade Union of the branch or the competent higher Trade Union Body, a written Statement of Guilt containing a detailed description of the facts and circumstances of the time, place and manner in which the offence imputed to the employee was committed.
2. Defence phase: in which, following receipt of the Notice of Culpability, the employee may reply in writing and, if he wishes, attach documents or request a hearing or evidence within 15 (fifteen) days.
   If evidence is taken, this must be done within 5 (five) consecutive days, after which the file is sent to the Trade Union Committee or, failing that, to the Trade Union of the branch or competent Trade Union Body for an opinion within 5 (five) working days.
3. Decision phase: in this phase, within 30 (thirty) days of the deadline for the submission of the opinion of the Trade Union Committee or, failing that, of the competent Trade Union Body, the employer must notify the employee and the Trade Union Body in writing of the decision taken, reporting on the evidence produced and stating the reasons for the facts contained in the Statement of Objections that have been proven.
   In the case of a unilateral termination of the Employment Contract, the employer is obliged to notify each employee concerned, the trade union body and the Ministry of Labour in writing (cf. Article 142/2 of the Labour Law).

Once the disciplinary procedure against the employee has been completed, the decision (i.e. dismissal) must be drawn up and communicated within 30 (thirty) days.

For unilateral termination of the Employment Contract, notice of the date of termination must be given at least 30 (thirty) days in advance.

The dismissal and/or termination of the Employment Contract of a foreign worker follows the same formalities imposed by law when a foreign worker is involved. 

In cases of individual dismissal through disciplinary proceedings, the intervention of the trade Union representing the employees is legally required in order to ensure that their rights are not violated. 

The trade Union is involved in dismissals resulting from disciplinary proceedings. In the case of unilateral termination of the Employment Contract, the Union is only informed by the employer in writing (see article 142/1 and article 70/1 c), both of the Labour Law).

Individual dismissal and termination do not require approval from the Ministry of Labour. However, whenever there is a unilateral termination of the employment contract. 

Legally (article 143 of the Labour Law), a collective dismissal is considered whenever the employer, simultaneously or successively, within a period of 3 (three) months, invoking structural, economic, technological and market reasons, terminates more than 8 (eight) employment contracts in small and medium-sized companies and more than 10 (ten) employment contracts in large and medium-sized companies.

Collective dismissal must always follow the formalities laid down in Article 131 of the Labour Law, namely:

• Communicate, in writing, to each employee concerned, to the trade Union and to the Ministry of Labour and Social Security, stating the reasons for the collective dismissal;
• The notice must be given at least 30 days before the planned date of termination of Employment Contracts;
• Indicate the number of employees covered by the process;
• Award of compensation, depending on the type of Employment Contract

If the formalities are not complied with, the collective dismissal may be challenged in court within 6 (six) months, the employer is obliged to prove the existence of structural, technological and market reasons. 

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In cases of dismissal through disciplinary proceedings, violation of its can lead, firstly, to its invalidity, under the terms of Article 72/1 of the Labour Law, whenever:

• The requirements of the notice of fault or its notification to the employee are not complied with, the employee is not heard if he has requested it, a public notice is not published in the company, or the case file is not sent to the trade union body, as well as the final decision of the Disciplinary Proceedings is not substantiated;
• Evidence requested by the employee is not provided;
• There has been a breach of the limitation periods for the disciplinary offence, the expiry of the time limit for replying to the notice of fault or for taking a decision.

Secondly, when the limits imposed by law, good faith, good customs, social or economic purpose are manifestly exceeded, the employer may be considered to have abused its disciplinary power, as well as the unlawfulness of the Dismissal, under the terms of articles 73, 74 and 75, both of the Labour Law.

Thirdly, a breach of the formalities of the Disciplinary Proceedings may lead to the dismissal being challenged within a period of 6 (six) months. The challenge may be preceded by a precautionary measure to suspend the dismissal, within 30 (thirty) months of the date of termination of the contract.

With regard to the termination of the Labour Contract, the violation of the respective legal formalities implies its nullity by court decision. 

Compensation is not paid when the dismissal has been deemed lawful. If the dismissal is found to be unlawful, the employee is, under the terms of Article 76/5 of the Labour Law, to be reinstated and paid the corresponding remuneration for a maximum of 6 (six) months or, if reinstatement is impossible, paid compensation, calculated under the terms of Article 139/2, of the same law.

In the collective dismissal, the compensation is calculated in legal terms, depending on the type of Employment Contract.

In the case of a fixed-term employment contract, the employer must make available to the employee concerned the cash compensation corresponding to the remuneration due between the date of termination and the date agreed upon at the end of the contract.

On the other hand, in the case of an open-ended employment contract, the employer must provide the employee with compensation equivalent to:

1. 30 (thirty) days' salary for each year of service if the employee's basic salary, including seniority bonus, is between 1 (one) and 7 (seven) national minimum wages;
2. 15 (fifteen) days' salary for each year of service if the employee's basic salary, including seniority bonus, is between 8 (eight) and 10 (ten) national minimum wages;
3. 10 (ten) days' salary for each year of service if the employee's basic salary, including seniority bonus, is between 11 (eleven) and 16 (sixteen) national minimum wages;
4. 3 (three) days' salary for each year of service if the worker's basic salary, including seniority bonus, is more than 16 (sixteen) minimum wages.

On the other hand, termination of the employment contract will only be compensated if it is for objective reasons (structural, economic and market), cf. article 141/1 of the Labour Law. 

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