One unavoidable scenario for companies in Mozambique are labour inspection visits. Although labour inspectors visit companies to verify compliance from an educational perspective, their visits may still raise tension. Normally, labour inspectors focus on compliance of common labour and social security obligations, but one specific area that attracts their attention is the employment of foreign citizens. This is as such because it seems to be likely for companies not to follow all the details when managing foreign employees’ contracts.1 Also, some companies may have a foreign employee working in their premises without proper work permit and stamped employment contract. In other cases the work permit application is still being processed by the labour department while the foreign employee is working already. Irrespective of the scenarios, experience shows that if a company is non-conforming with matters regarding employment of foreign citizens, the labour inspectors will be stricter. In such cases a violations report (“auto de notícia”) containing huge fines is likely to be issued. What now?
There are two probable scenarios: (i) pay the fines and fix what is non-conforming, or (ii) challenge the violations report.
But how one challenges in these circumstances? Firstly, there is the possibility of presenting a formal complaint (“reclamação”)2 to the competent hierarchical superior who confirmed the violations report.3 In this case the complaint must be submitted within fifteen days from the date the violations report was notified. In the complaint the company has the opportunity to expose its legitimate grounds to challenge and request that the fine is cancelled or reduced. For instance, the company may provide a broader context to show that the labour inspectors may have misjudged the real company’s situation by imposing unfair and disproportionate fines. Also, the company may provide material evidence. At this stage verbal interaction with labour authorities is less effective – conflict has knocked the company’s door, it is time to fight.
Submitting a formal complaint suspends the legal period for payment of fines. The suspension prevails until the notification of the labour inspector-general’s decision. This decision must be taken within twenty days from the date of complaint submission. If there is no formal response from the labour inspector-general, within the legal period, the decision is deemed unfavourable, i.e., tacit rejection. On the other hand, if there is a favourable decision, i.e., the fine is cancelled, then the violations report is archived. Moreover, if the decision consists in reduction of the fine amount, the violations report is adjusted accordingly.
Yet, the company may still want to go further and keep challenging. In such case, it may submit a hierarchical appeal (“recurso hierárquico”) to the Minister of Labour or take the case to the courts.4 Once the hierarchical appeal is submitted to the Minister of Labour a response is expected within fifteen days, and if there is no response, again, tacit rejection occurs. In this case the company may request the Minister to issue a formal decision or confirm the occurrence of tacit rejection. If the decision is issued in unfavourable terms, or, if tacit rejection is confirmed, or, if the Minister just remains silent, then the company can proceed to the courts by submitting a litigious appeal (“recurso contencioso”).5
It is evident that challenging labour inspectorate decisions can be a time consuming process. Fortunately, there are legal remedies the company can use to defend its rights, provide accurate context to the labour authorities, and hopefully have the fines cancelled or reduced. Notwithstanding the above, safety in the details is the best course to follow in order to prevent stressful situations.6 Also measurements to identify, prevent and mitigate risks7in management of foreign employee’s contracts can make a difference between tension and free cooperation in the next labour inspection visit, and, above all, lead to a more successful outcome when things get harsh.
- Please refer to my article “Some Considerations on Employment Contracts with Foreign Citizens”
- Decree no. 45/2009, of 14 August (approves the “Labour Inspectorate Regulations”), Article 24.
- Due to the huge fines involved (between five and ten times the monthly wage of the foreign employee in respect of whom the offence was found), generally the complaint is directed to the labour inspector-general.
- Labour Inspectorate Regulations, Article 25.
- There are different positions about the competent jurisdiction to which litigious appeals should be submitted. Some defend that it should be the administrative courts to hear the case since it is all about challenging decisions taken by labour administrative authorities. Others defend that it should be the labour courts since it is the express intention of the labour legislator that these cases are heard by the labour courts. This matter will be addressed in a future article
- Please refer to my article “The Safety is in the Details!”
- Please refer to my article “The Best Way to Win Legal Disputes”