The Burundian Labour Code makes no distinction between blue-collar and white-collar workers. It refers only once to manual or intellectual work, without affecting the status of the worker.

The Burundian Labour Code nevertheless refers to different categories of workers, ie, home workers, temporary workers, workers in the informal sector, displaced workers, day workers and seasonal workers. It also refers to categories of jobs, such as managers, but not predominantly.

Different Types of Employment Contracts

In Burundi, open-ended employment contracts are the most common contracts. However, fixed-term employment contracts can be entered into for the execution of a specific and non-durable task, such as replacement of a worker whose contract is suspended, jobs for which, in certain sectors of activity, it is common practice not to use open-ended contracts (these sectors have not yet been defined), occasional tasks, temporary and exceptional increase in activity, urgent work necessary to prevent accidents, seasonal jobs, etc. In addition to these circumstances, a fixed-term employment contract can be entered into for the opening of an enterprise or for the launch of a new product, for a duration of one year maximum.

Requirements

Open-ended employment contracts must be in writing, in two copies signed by the parties. The Burundian Labour Code states that an employer may not rely on the absence of a written contract to disprove an employment relationship if there are several relevant indications that an employment relationship exists. This suggests that oral contracts are permitted in Burundi, although it is not recommended for evidential purposes.

Open-ended employment contracts must include at least the following items:

• company name and address, along with the name of the director or manager of the company or undertaking;
• worker’s first and last names;
• worker’s date and place of birth;
• worker’s nationality;
• composition of the worker’s family;
• worker’s profession;
• place and residence of worker at time of conclusion of contract;
• date of engagement;
• duration of employment;
• job description;
• place of work;
• classification of the worker in the professional hierarchy;
• amount of salary, possibly broken down into base salary, bonuses and various allowances, family benefits and benefits in kind;
• special conditions in the contract;
• signatures of the parties; and
• work permit number for foreign workers or workers from the East African Community.

The employment contract must be drawn up in one of the official languages that the worker is able to understand (Kirundi, French or English).

Specific rules apply to fixed-term employment contracts, which must:

• be in writing;
• mention their term or the duration of the suspension, if entered into for the replacement of a suspended worker; and
• mention the duration of the probation period, as the case may be.

Entry into a fixed-term employment contract is prohibited in the following circumstances:

• within six months after an economic dismissal if it is for a temporary increase in activity;
• to replace a worker whose contract is suspended due a collective labour dispute; and
• to carry out particularly dangerous work.

Legal Working Time Limits

The maximum working time is in principle eight hours per day and 45 hours per week. Derogations are provided for in very specific cases, such as the recovery of hours following a collective interruption of work due to an accident or force majeure, or in the case of urgent work to prevent imminent danger. In case of shift work, the working time of each shift may not exceed eight hours per day.

Breaks must be at least 20 consecutive minutes in any six-hour working day. In addition, workers must have a rest period of at least ten consecutive hours in each 24-hour period of work and 24 hours off (in principle, every Sunday) per seven-day period of work.

In the event of urgent and exceptional work, the company may extend working hours by 15 hours per week, up to a maximum of 150 hours per year.

Possibility of Flexible Arrangements

Flexible (mutual) arrangements regarding working time are admitted, provided, however, that any hour performed beyond the maximum working hours per day/week will fall under the rules regarding overtime.

Part-Time Contracts

Part-time work is work where the weekly working time is at least one third less than the legal working time or the collectively agreed working time for the sector or company. The employer must consult the workers’ representatives on the introduction or extension of part-time work and inform them of the applicable rules and procedures.

Part-time workers must be informed in writing of their specific conditions of employment and the part-time employment contract must mention the following items:

• employee qualification;
• remuneration components;
• weekly duration or, where applicable, monthly duration of work; and
• distribution of working time between the days of the week, or, where applicable, the weeks of the month.

Part-time workers enjoy the same protection as full-time workers and their hourly wage cannot be lower than the hourly wage of a full-time worker in a similar situation, because of their part-time status.

Overtime

Hours worked beyond the legal weekly working time qualify as overtime. Overtime is compensated by a salary increase of 35% for the first two hours worked in excess of the legal weekly working time and of 60% for each subsequent hour. Overtime worked on a weekly rest day or public holiday entitles workers to a 100% increase in salary.

Executives are not entitled to overpay in case of overtime.

Minimum Wage Requirements

To date, there is no minimum wage in Burundi. Wages are therefore freely determined by negotiations between employers and workers.

Thirteenth Month and Variable Remuneration

The Burundian Labour Code does not provide for a thirteenth month to be paid to employees. However, it provides that workers under an employment or apprenticeship contract are entitled to a seniority bonus, equal to 3% of the workers’ gross remuneration. The seniority bonus is payable by the employer. Employers must also pay a housing indemnity. Although the amount is not mentioned in the Burundian Labour Code, it is common market practice in Burundi to grant a housing indemnity equal to 60% of the worker’s salary.

Government Intervention in Salary Increase

Nothing is mentioned in the Burundian Labour Code in this respect.

Vacation

Under Burundian law, the employer has the obligation to grant vacation and vacation pay to workers, who cannot renounce their vacation rights. Workers are entitled to 1⅔ working day per full month of service, ie 20 working days per year. For every four years of service with the same employer, the duration of the paid annual leave is increased by at least one additional working day.

To schedule their holidays, workers must first submit their vacation request in writing to the employer, who must in turn respond in writing. The employer sets the date of the paid annual leave in consultation with the worker, taking into account the needs of the job and the rest opportunities for the workers. Workers must be informed of the start date of their annual leave at least 15 days in advance.

Workers can accumulate their paid annual leave over a period of two years, upon agreement with their employer. The annual leave can be taken all at once or in instalments, as agreed between the parties.

Paid Leave for Training Purposes

Workers are entitled to paid leave at the employer’s expense to participate in internships or sessions exclusively dedicated to work education or trade union training. To benefit from this leave, the union organising the internship or the session must submit the request to the employer at least 15 days in advance, specifying the date and duration of the absence. Workers are entitled to paid leave for the full period of the internship or session.

Incapacity to Work

The worker’s incapacity to work due to illness or accident suspends the employment contract. Workers are entitled to a daily allowance paid by social security or, if their employer is not insured, by their employer. 

Maternity Leave

Maternity leave under Burundian law consists of a suspension of the employment contract during 12 consecutive weeks, which may be extended to 14 weeks, six of which must be taken after delivery. During this period, the mother is covered by the organisation to which her employer is affiliated for maternity leave and keeps, during her leave, the benefits in kind she received from her employer.

Circumstantial Leave

The worker is entitled, at their request, to paid circumstantial leave. If the right to circumstantial leave arises when the worker is already benefiting from another statutory leave (eg, when they are on annual leave), the circumstantial leave is granted immediately after the last day of the period of statutory leave during which the right to circumstantial leave arose.

The employer is only obliged to pay up to a maximum of 15 days of circumstantial leave per year. Circumstantial leave is as follows.

• Four working days in the event of:
1. the worker’s marriage;
2. the birth of a child;
3. the death of the worker’s spouse;
4. the marriage or death of the worker’s child, father or mother; or
5. the worker’s transfer involving a change of location.     
• Two working days in the event of the death of the worker’s grandparents, brother or sister.

Confidentiality and Non-disparagement

The Burundian Labour Code states that the workers must refrain from disclosing trade secrets. Also, workers’ representatives are bound by a duty of discretion with regard to information they hold by virtue of their mandate. There is no other provision regarding possible restrictions in terms of confidentiality or non-disparagement clauses. Employers are therefore free to include such clauses in employment contracts or settlement agreements.

Worker’s Liability

The Burundian Labour Code specifies two situations in which a worker can be held liable, entitling the employer to claim compensation. The first situation relates to the damages the workers may be liable to pay for the loss suffered by the employer in case of early termination of a fixed-term employment contract before its term, except in case of serious cause on the part of the employer, mutual consent, force majeure, inability to work ascertained by a general practitioner, or death. There are no rules or ceiling for compensation. The amount of damages is left to the discretion of the judge.

The second situation concerns the damages that employees may be required to pay in the event of wrongful termination of the employment contract by the employee or as a result of serious misconduct on the part of the employee. Damages may not exceed an amount equivalent to 36 months of the worker’s last salary.

In addition to the above, disciplinary sanctions may be imposed on a worker when they have committed a fault in the exercise of their professional activity. The types of disciplinary sanctions are:

• warning;
• reprimand with a record in the worker’s file;
• lay-off for a period not exceeding 15 days; and
• dismissal.

Employers may not take disciplinary action against an employee for a fault of which the employer has been aware for more than two years. Furthermore, the employer may only impose a sanction mentioned in the in-house work rules if the company has such work rules regulations (which is mandatory for companies employing at least 15 workers).

Before imposing a disciplinary sanction, employers must send the worker a letter requesting an explanation. If the employer decides to proceed with a disciplinary sanction, it will be notified in writing by registered letter or by hand-delivered letter with acknowledgement of receipt. The notification must contain the reasons justifying the disciplinary sanction.

The sanctioned employee has the right to appeal the sanction.

If the worker refuses to receive any document relating to the disciplinary sanction, the employer must have it certified by the staff representatives or the head of the local authority where the employee resides or, failing that, by witnesses. Information is also given to the labour inspector.

On the occurrence of a new fault, no previous sanction taken more than two years before this new fault may be invoked in support of a new disciplinary sanction.

The Burundian Labour Code does not address non-compete clauses. It merely prohibits the workers from engaging in or co-operating with any act of unfair competition.

Nothing is set out in the Burundian Labour Code regarding non-solicitation clauses. However, the Code refers to damages that the worker and their new employer may be liable to pay to the former employer if the worker left their company due to the solicitation of the new employer, with a maximum of 36 months of the worker’s last salary. Although the Labour Code already sanctions the solicitation of workers, it is recommended that such a non-solicitation clause be included, usually applicable for a standard period of 12 months following the termination of the employment contract.

Nothing related to privacy is mentioned in the Burundian Labour Code. Generally speaking, privacy is mentioned in the Burundian Constitution. Although not expressly stated, it may reasonably be assumed that this provision could be interpreted as applicable within the work sphere.

Foreign workers may not exceed one-fifth of the company’s workforce per professional category. However, where there are insufficient numbers of qualified Burundians for a position, the minimum proportion of four-fifths nationals may be lowered in consideration of the special conditions of each company, after an orientation commission set up to issue to work permits has duly noted the insufficiency of Burundians in the qualification(s) considered.

Employers occupying foreign workers are required to pay a tax calculated on the basis of 3% of the worker’s gross annual salary. This tax is paid annually from the date of approval of the employment contract.

Any foreigner or any citizen of a member state of the East African Community must hold a work permit or a special authorisation, where applicable, to carry out a professional activity in Burundi. The work permit is nominative. It is granted by an orientation commission and is issued by the Labour Inspectorate.

For resident foreigners, the permit is issued at their request. For non-residents, the application is made by their future employer.

Applicants for work permits must provide the following documents:

• a letter of application;
• identity card;
• diploma or certificate;
• two passport photos; and
• curriculum vitae.

Work permits are valid:

• for two years for foreigners with special technical skills;
• for five years for refugees and stateless persons recognised as such by the relevant authorities, and foreigners who have been resident in Burundi for at least 20 years;
• permanently for foreigners born in Burundi and living there, as well as spouses of Burundian citizens residing in Burundi who have retained their original nationality.

Permanent work permits are also issued to foreign investors or their representatives whose presence in Burundi is justified by the need to monitor the management of their capital.

Foreign workers are required to renew their work permits one month before the expiry date.

There is no provision regarding mobile work as such in the Burundian Labour Code. However, the Code rules home-working contracts, ie where the workers are remunerated to carry out an activity with a view to providing a service either at their home or in other places of their choice. This contract may be a fixed-term or an open-ended employment contract and must be in writing. Home-workers enjoy the same working conditions and social protection as workers working from the company’s premises.

There are no regulations on sabbatical leave in Burundi.

There is nothing specific to be mentioned regarding new manifestations in this jurisdiction.

Role of Unions

Workers and employers have the right to form unions to defend their professional interests. The representation of workers in undertakings is ensured by an elected trade union delegation. Every worker or employer, without distinction of any kind, has the right to join or to leave a professional organisation of their choice.

Workers enjoy an appropriate protection against all acts of discrimination tending to prejudice their freedom of association. In this respect, it is prohibited for any employer to subject an employment relationship to any limit based on an affiliation or non-affiliation to any professional organisation and to dismiss a worker or otherwise cause them harm because of their affiliation to a professional organisation and/or participation in trade union activities.

Status of Unions

As to formalities, trade unions must register with the Ministry of Labour and draft articles of association. The Burundian Labour Code states a specific procedure to be followed to set up trade unions.

Employees’ and employers’ associations are registered with the Minister of Labour and must draft articles of association. They are registered within 45 days of the production of all required documents. Once registered, they enjoy legal capacity, meaning that they can initiate legal proceedings, acquire movable or immovable property and enter into agreements with other unions, companies, enterprises and persons.

Institutions of the Employee Representative Bodies

In Burundi, two kinds of employee representative bodies can be instituted.

• A works council, which must be established within companies employing at least 20 permanent workers. Companies employing fewer than 20 workers can establish a works council, after consultation with the workers or on the basis of a collective bargaining agreement. The number of members of the works council to be elected is to be set by a Ministerial Order, which has not yet been adopted.
• A trade union delegation: a union may appoint one or several trade union delegate(s) to represent it in dealings with the company manager and to manage trade union activities. The number of trade union delegates to be designated is set by a collective bargaining agreement.

Missions of the Employees’ Representatives Sitting on the Works Council

The employees’ representatives must:

• ensure a permanent contact between the employer and the workers;
• pass on the workers’ requests and any individual or collective complaints that have not been directly resolved, particularly as regards working conditions, employee protection, the application of collective agreements, job classifications and pay rates;
• communicate to the employer any useful suggestions for improving the organisation and performance of the company, and relating to the application of health and safety regulations and to social welfare;
• refer to the Labour Inspectorate any complaint or claim concerning the application of law;
• negotiate company agreements in the absence of trade union delegates, and give opinions on company regulations and holiday plans;
• in the absence of an occupational health and safety committee, ensure its mission, ie ensure compliance with health, safety and hygiene regulations, detect risks to workers’ health or safety, study the necessary preventative measures and intervene in the event of an accident.

Elections

The workers’ representatives sitting on the works council are elected every two years, by all the workers except those who represent the employer. They can be re-elected.

The works council is composed of the employer or their representative and of workers’ representatives, the numbers being fixed as follows:

•       three delegates and three alternates for companies employing between 31 and 50 workers;

•       four delegates and four alternates for companies employing between 51 and 200 workers;

•       five delegates and five alternates for companies employing between 201 and 500 workers; and

•       six delegates and six alternates for companies employing between 501 and 1,000 workers.

For companies employing more than 1,000 workers, one additional delegate and alternate are elected for every 500 workers. The delegates are elected from among the employees of the establishment who meet the conditions of eligibility (inter alia, being at least 21 years old and being at the service of the employer for at least one year).

At least twenty-five days before the elections, the employer must post a notice with the date of the ballot and the number of permanent and alternate representatives to be elected. Nominations must be submitted at least 20 working days before the date set for the ballot. They must be submitted in writing, dated and signed, to the employer, who will issue a receipt. The list of candidates must be posted at least 15 working days before the date of the ballot.

The employer must send the invites to vote at least five working days before the ballot. The poll is composed of one or two rounds. If, in the first round of voting, the number of votes cast is less than half the number of registered voters, a second round is held under the same conditions, within thirty working days.

Seats are allocated on the basis of one seat per candidate between the candidates with the highest number of votes. If there are several candidates with the same number of votes, the seat is awarded to the candidate with the longest service at the company.

When the counting operations have been completed, the president of the electoral office draws up the minutes of the electoral operations. Election results are posted by the employer the day after the elections at the latest.

General Principles

The collective bargaining agreement is an agreement on the conditions and the employment relationship between one or more employers or one or more employers’ organisations and one or more workers’ organisations or directly with the workers. In any company to which the agreement applies, it must be displayed in a visible place and easily accessible to workers.

Collective bargaining agreement may relate to the following:

• the free exercise of trade union rights;
• salaries applicable by professional category;
• conditions of recruitment and dismissal of workers;
• the length of probation periods and notice periods;
• paid holidays;
• overtime pay arrangements and overtime pay rates;
• seniority and assiduity bonuses;
• travel allowances;
• the general conditions of performance-related pay, where such pay is recognised as possible;
• extra pay for arduous, dangerous or unhealthy work;
• professional training within the scope of the branch of activity; and
• the organisation, management and financing of medical and social services.

To be valid, the collective bargaining agreement must mention mandatory provisions, such as its date, subject, the names and capacities of the contracting parties and signatories.

Collective bargaining agreements may contain provisions that are more favourable to workers than those of the laws and regulations in force but cannot violate the public order. The provisions of a collective agreement prevail over provisions set in individual employment contracts and the in-house work rules.

As to the adoption procedure, all contractors must sign the collective bargaining agreement, which must be drawn up in as many copies as there are parties. The agreement is then submitted to the visa of the Minister of Labour before being filed at the registry of the territorially competent court or, failing that, at the registry of the tribunal de grande instance. Once received, the court registry will immediately send two copies of the agreement to the Minister of Labour.

The provisions of a collective bargaining agreement apply to all workers in the categories concerned, employed in the company (or companies) covered by the scope of the collective agreement, unless the collective agreement provides otherwise.

Remedy in Case of Breach

Breach of the agreed obligations stated in a collective bargaining agreement entitles the parties to a claim for damages, the terms and limits of which may be stipulated in the collective bargaining agreement.

Grounds for Termination

Any dismissal must be based on a precise, exact, objective and verifiable reason, of sufficient gravity to make it impossible to continue the employment relationship. It is therefore an a priori motivation regime that governs employment contracts’ termination in Burundi.

The Burundian Labour Code distinguishes three types of grounds for dismissal.

• Personal grounds, based on personal factors, such as the employee’s state of health resulting in permanent disability, inability to do the job, professional inadequacy or misconduct.
• Grounds relating to the organisation, restructuring, decline in activity or closure of the company, which include a drop in orders or sales over several consecutive quarters, operating losses lasting several months, a significant deterioration in cash flow, technological change, reorganisation of the company to safeguard competitiveness, a merger or a spin-off.
• Economic grounds, when the worker’s position is abolished or undergoes a significant transformation. Dismissals based on such a reason are subject to specific rules.

In addition to these general grounds, the Burundian Labour Code lists a number of valid reasons for dismissal, including the following:

• the act of improbity;
• the employee’s proven unfitness for the job;
• a serious breach of discipline;
• duly established professional incompetence;
• repeated and unjustified absenteeism; and
• economic necessity making a reduction in the workforce unavoidable.

Termination Formalities

When an employer contemplates dismissing a worker, they must first be informed, in writing, of the alleged reason for the envisaged dismissal and be invited to provide written explanations within two working days. When the decision to dismiss is taken, the employer must notify the dismissal to the worker by registered letter or by letter delivered by hand, stating the reason(s) for the dismissal. A copy of the notification letter must be sent to the competent Labour Inspectorate. The dismissal is effective the day after its notification.

At the request of one of the parties, the termination can also be authorised by the labour court when it has become impossible or intolerable to continue the working relationship. In that case, the court will decide whether a notice period must be performed.

Termination Indemnity

In case of termination without serious cause, workers (except day workers and workers on probation) are entitled to a termination indemnity, the amount of which can be determined by collective bargaining agreements or employment contracts. In any case, the termination indemnity cannot be less than:

• half the average monthly remuneration in cash and, where applicable, the average monthly legal value of benefits in kind, including the housing allowance, for workers with less than three years of service;
• twice the above amount for workers with three to five years of service;
• four times the above amount for workers with five to ten years of service; or
• six times the above amount for workers with more than ten years of service.

Such indemnity must not be confused with the indemnity in lieu of notice, paid when a notice is due but not performed, nor with damages, paid in case of abusive termination of the employment contract.

In the event of an early termination of a fixed-term contract by the employer, the latter must pay damages at least equivalent to the remuneration that the worker would have received until the end of the contract. Similarly, if it is the worker who terminates the contract early, the employer is entitled to damages for the loss suffered, except in specific cases (see 1.5 Other Employment Terms, Workers’ Liability).

Collective Redundancies

When the employer is planning to dismiss several workers for economic reasons, they must first inform in writing the staff representatives on the works council and the trade union representatives, to hear their opinion and their suggestions on the appropriate measures to be taken. The employer must inform the workers’ representatives of the reasons for the contemplated dismissals, the number and categories of workers likely to be dismissed, the criteria to set the dismissals order, the period of notification of the dismissals, the adopted measures to limit the number of dismissals and to facilitate the outplacement of dismissed workers. A copy of this information is sent to the competent Labour Inspectorate.

In deciding the criteria for the order of dismissals, the employers must take into consideration the worker’s qualification, professional aptitude, years of service, age and family responsibilities. Also, a disabled worker must be dismissed last.

The workers’ representatives will then give their opinion on the contemplated dismissals. Upon reception of this opinion, the employer will organise a meeting with the workers’ representatives to present the employer’s latest dismissal project and their views on the workers’ representatives’ observations and suggestions. The workers’ representatives can give once more their opinion on the employer’s views, and minutes of the meeting will be drawn up and signed by all parties.

The employer will send their finalised project of dismissal to the competent Labour Inspectorate, mentioning the name and qualification of the workers they are planning to dismiss, the planned dates of the dismissal notifications and the measures adopted to facilitate the outplacement of the workers concerned. For a period of one year following their dismissal for economic reasons, the dismissed workers are entitled to priority hiring, without competition, when they meet the profile of the vacancy.

General Rules Regarding Notice Periods

The termination of the contract must be notified in writing by the party taking the initiative to the other party. The notice period starts from the day following the notification.

Notice cannot be given when the worker in on annual leave, is absent due to circumstantial leave or when the worker is sick. Should the employer terminate the contract in these circumstances, the notice period to which the worker is entitled will be doubled. Similarly, notice cannot be given when the contract is suspended, unless in the following cases:

• mutual consent;
• serious misconduct;
• when the cause of suspension disappeared and the worker did not return to work; and
• when six months have elapsed from the start of the suspension. Once this period has elapsed, the employer may terminate the contract with a notice or an indemnity in lieu of notice and a termination indemnity. This does not apply to contracts suspended for occupational accident or occupational disease.

During the notice period, the employer and the employee remain bound by all their contractual obligations. During the same period, the employee is entitled to one paid day off per week to find a new position.

Duration of the Notice Period

The notice period duration cannot be less than:

• one calendar month for workers with less than three years of service;
• one calendar month and 15 calendar days, for workers with three to five years of service;
• two calendar months, for workers with five to ten years of service; or
• three calendar months, for workers with more than ten years of service.

In the event of termination of the employment contract by the employee, the notice period is equal to half the period of notice that would have applied if the employer had terminated the contract.

Indemnity in Lieu of Notice

In the event of termination of an open-ended employment contract without notice or without the notice having been fully observed, the responsible party must pay the other party an indemnity in lieu of notice equivalent to the remuneration and benefits in kind that the worker would have received if the notice had been performed.

Under Burundian labour law, a serious cause is a serious breach of contractual obligations or any serious breach provided for in the in-house work rules. Companies define in their in-house work rules the serious breaches that are considered serious cause.

According to the law, workers commit a serious cause when they seriously breach the obligations of the contract, in particular in the following cases:

• act of improbity, assault or serious insults against the employer or their staff;
• material damage intentionally caused to the employer during the performance or the suspension of the contract;
• the worker compromises, by their imprudence, the safety of the establishment, of the work, of the personnel or of third parties, during the performance of the contract; and
• the worker is guilty of acts of moral or sexual harassment.

Employers commit a serious cause when they seriously breach the obligations of the contract, in particular in the following cases:

• act of dishonesty, assault or serious insult towards the worker, or tolerates, on the part of other workers, similar acts towards the worker;
• material damage intentionally caused to the worker during or during the performance or the suspension of the contract;
• the employer or their representative makes undue reductions or deductions from the worker’s salary;
• the employer experiences repeated delays in the payment of the salaries due to the worker; and
• the employer is guilty of acts of moral or sexual harassment.

These lists are not exhaustive.

Any dispute concerning the nature or seriousness of the fault is left to the discretion of the competent court. In case of dismissal for serious cause, the contract is immediately terminated, without notice period nor indemnity of any kind.

The parties to the employment contract may decide to terminate it by mutual consent, provided that it is done in writing. The parties may negotiate the terms of termination. However, they must agree on a severance payment which, when the employer takes the initiative of the termination, cannot be less than the statutory indemnity in lieu of notice and termination indemnity. The Labour Code does not stipulate that the parties must agree on a severance payment when it is the worker who takes the initiative of the termination by mutual consent.

When the mutual consent termination occurs in the context of downsizing of the workforce or job transformation (restructuring) for economic reasons, the workers’ representatives must be informed of the negotiations between the parties, and consulted for their observations and suggestions. The Labour Inspectorate must also be informed, in the same way as the procedure for economic reasons (see 7.1 Grounds for Termination, Collective Redundancies).

The Burundian Labour Code includes provisions aimed at protecting certain categories of workers against dismissal, for example:

• workers who suffered or refused to suffer moral or sexual harassment or who witnessed or reported such harassment;
• workers who exercised their right to freedom of expression;
• workers who refused to transfer from full-time to part-time work and vice versa;
• women during their maternity leave; and
• workers whose contract is suspended, except specific cases (see 7.2 Notice Periods, General Rules Regarding Notice Periods).

Furthermore, it is prohibited for an employer to dismiss a worker or otherwise prejudice them because of their affiliation to a professional organisation and/or participation in trade union (delegation) activities.

Under the Burundian Labour Code, dismissing workers’ representatives is not prohibited. However, the dismissal of workers’ representatives is subject to a specific procedure, summarised as follows.

• A request to proceed with the dismissal must be sent to the Labour Inspectorate.
• The Labour Inspectorate organises a conciliation meeting to verify the reason(s) for dismissal:
1. where it is proven that there is no professional misconduct, whether or not there is a link between the request for dismissal and the workers’ representative mandate, the authorisation to dismiss is refused in the event of non-conciliation; or
2. where there is professional misconduct, whether or not there is a link between the request for dismissal and the mandate, and if there is no conciliation, the Labour Inspectorate will draw up non-conciliation minutes and authorise the dismissal.
• The same procedure applies in the event of dismissal for economic reasons.
• The employer may immediately lay off the employee concerned pending the final decision of the Labour Inspectorate. If the dismissal is refused, the lay-off is cancelled and its effects automatically terminated.
• The Labour Inspectorate’s motivated decision is handed down within ten days of the application being made. It may be appealed to the Labour Court.
• The dismissal of a workers’ representative that has not been approved by the Labour Inspectorate is null and void.

Grounds for a Wrongful Dismissal Claim

The Burundian Labour Code flags some invalid dismissal grounds:

• trade union activity;
• facts concerning private life which do not seriously harm professional activity;
• facts concerning the worker’s political or religious opinions;
• having lodged a complaint or participated in proceedings brought against an employer due to alleged violations of the legislation;
• having lodged an appeal before administrative authorities;
• race, colour, language, religion, sex, political, philosophical or religious opinion, ethnic or social origin, state of physical or mental disability, status of carrier of HIV/AIDS or any other incurable disease;
• absence from work during maternity leave; and
• temporary absence of the worker due to illness or accident before six months have elapsed (see above).

A dismissal based on one of these reasons will be deemed abusive. This list is not exhaustive, which means that an employer should be careful when dismissing an employee and ensure that they have a valid reason for dismissal.

Consequences of a Wrongful Dismissal

Termination of an open-ended employment contract without a valid reason entitles the worker to reinstatement. Failing this, the worker will be entitled to damages fixed by a labour court. The amount of damages is calculated taking into account the worker’s years of service, their age and their salary. To do this, one third of the sum of the years of age and seniority is multiplied by the last monthly remuneration of the worker (with a maximum amount equivalent to 36 months of the worker’s remuneration).

The Burundian Labour Code states four particular discrimination issues:

• occupation of foreign workers;
• part-time workers;
• non-discrimination in salaries for equal jobs; and
• freedom of association.

As to the occupation of foreign workers, where they are legally employed, they enjoy the same rights as national workers. Part-time workers must receive the same protection as full-time workers. Workers doing the same work or work of equal value are entitled to the same salary.

Workers’ representatives enjoy an appropriate protection against all acts of discrimination that aim to impair their freedom of association. In this respect, it is prohibited for any employer to subject an employment relationship to (non-)affiliation to any professional organisation and to dismiss a worker or otherwise cause that worker any harm because of their affiliation to a professional organisation and/or participation in trade union activities.

As to freedom of association, workers benefit from appropriate protection against all acts of discrimination tending to infringe freedom of association in matters of employment. In this regard, it is prohibited for any employer to make the employment of a worker conditional on their affiliation or non-affiliation to any trade union or to a specific trade union and to dismiss a worker or to harm them by any other means because of trade union affiliation or participation in trade union activities.

Nothing is mentioned in the Burundian Labour Code concerning the burden of proof. It is reasonable to assume that, without any particular rule, it is the worker who alleges the discrimination who must prove that they are in fact the victim of discrimination. The worker could claim compensation in court.

The Burundian Labour Code does not address the issue of digitalisation of employment disputes.

In Burundi, there are no specialised employment forums. Employment-related claims can be brought before the Labour Inspectorate for conciliation, or directly brought before labour courts. There is no “class action” as such.

The parties may be assisted or represented by a lawyer, another employer or another worker of the company, a representative of the trade union or the employers’ union. The employer may be represented by one of their subordinates or by any person to whom they have given power.

In collective disputes, arbitration is a possible alternative to labour courts if the attempted conciliation fails, and is the next step if the attempted mediation fails.

In case of arbitration, the file and the report drawn up by the mediator or the Labour Inspectorate (in case of conciliation) on the status of the dispute are transferred to the arbitration council, composed of a general director, an employers’ representative, a workers’ representative and two personalities designated by the Minister of Labour because of their moral authority and expertise in economic and social matters. The employers’ and workers’ representatives are appointed by the Minister of Labour on the recommendation of the most representative professional organisations.

The arbitration council has the broadest powers to obtain information on the economic situation of the companies and workers involved in the dispute. It must examine the file and draw up an arbitration award within four working days of receiving the file.

In the event of conciliation, the arbitration award is enforced and the minutes of the conciliation are sent to the labour court for enforcement. If conciliation is not reached, the award and the entire file are forwarded to the Minister of Labour, who immediately forwards the file to the labour court, which has eight days to hand down its decision.

The Labour Code does not address the issue of awarding attorney’s fees or other costs to the prevailing employee or employer.