Dismissal for Serious Misconduct in Madagascar: Key Legal Considerations

Key Takeaways:

• In Madagascar, dismissal for serious misconduct demands rigorous proof of fault and strict adherence to procedural rules.

• Breaching formal requirements (e.g. failing to convoke for a hearing, lacking authorization when required) can render a dismissal invalid even if the misconduct is real.

• The prescription period for labour claims is tightly regulated—delays by the employee can bar the claim altogether.

• Employers should document each step carefully and structure defenses around both form and substance.

Current legal framework in Madagascar:

Under Malagasy labour law, termination based on fault grave allows an employer to dispense with notice and severance only if the misconduct is established as real and serious. But this possibility is tempered by strict procedural safeguards: the employee must be invited to a hearing, be allowed to respond, and receive a written decision. Any failure in this sequence may render the termination invalid.

For representatives (e.g. staff delegates), an additional layer applies: the employer must obtain prior authorization from the labour inspectorate before proceeding with dismissal. If the administration refuses, the employer may seek recourse through internal appeal and an ensuing investigation.

Furthermore, the statute of limitations for salary and employment-related claims is 12 months under the Labour Code. Interruption of prescription (for example by formal notice, judicial acts, or admission) can reset these deadlines, but courts rigorously scrutinize whether such interrupting acts occurred properly.

Case Study:

Application of theory to actual dispute In one recent case before the Antananarivo Appeal Court, a cashier was accused of improper handling of invoices—failing to annul them correctly, then reissuing them to new clients without consent, and neglecting to promote a special offer mandated by the employer.

The employer followed procedure: convocation to an interview, seeking approval from the labour inspectorate (given the employee’s representative status), and contesting a refusal through hierarchical appeal. The labour administration rejected the request due to procedural irregularities in the employer’s response. The employer then lodged a formal appeal and requested a fact-finding hearing.

The employee challenged the dismissal before the labour court, which found the termination procedurally flawed but upheld it on the merits. The employer appealed, contesting the decision on prescription grounds: the employee had filed the case more than 12 months after the alleged interrupting act, in their view. The appeal further hinged on whether the misconduct justified summary dismissal absent notice.

This case illustrates how intertwined procedural formality and substantive justification are in fault-based dismissal disputes. Even when misconduct is convincing, procedural missteps or timing miscalculations can reverse a case.

Strategic lessons for employers & Practitioners:

Given the risks, employers should proactively structure dismissal cases:

• Always document disciplinary steps in writing (convocation, hearing record, decision).

• Confirm that any required labour authority permission is processed correctly if the employee holds a mandate.

• Check that any acts invoking prescription interruption are valid (e.g. formal notices, admissions) and can be proven.

• Use a graduated approach (warnings, sanctions) before summary dismissal, when possible, to support proportionality.

• In complex or high-stakes matters, engage counsel early to validate steps, anticipate arguments, and limit exposure.