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Periodical article Periodical article
Title:Le contrôle juridictionnel de la rupture du contrat de travail pour faute lourde en RD Congo
Author:Mbenga, Joseph Kaciunga
Periodical:KAS African Law Study Library (ISSN 2363-6262)
Geographic term:Congo (Democratic Republic of)
External link:https://www.nomos-elibrary.de/index.php?doi=10.5771/2363-6262-2021-4-505
Abstract:This study deals with a socio-professional issue, the gross negligence, which is defined under the terms of article 72 of law no. 015-2002 on the labor code as amended and supplemented by law no. 16/010 of july 15, 2016, in these terms: a party is deemed to have committed a gross negligence when the rules of good faith do not allow to require the other party to continue to perform the contract. we have noted that this fault can be committed by either party to the contract and that the injured party has the right to immediately terminate the contractual relationship without notice to the party presumed guilty. noting that there is an imbalance between the employer and the worker in the determination of gross misconduct, and especially that this misconduct has become a fatal weapon in the hands of company managers, the democratic republic of congo has entrusted the assessment of gross misconduct on the basis of the law n°016/2002 of october 16, 2002 on the creation, organization and functioning of labor courts to judges. this article shows that there is an urgent need to revise article 72 of law n°015-2002 on the labor code as amended and completed by law n°16/010 of july 15, 2016, since it leaves the determination of gross negligence to the goodwill of the contractors, thus making them both judge and party. as the judge in many cases is often limited to the version of the facts presented by the parties without however ordering measures of investigation on the said reason; we have, to mitigate the abuses in the breach of contract for gross misconduct, suggest that article 187 of law no. 015-2002 on the labor code as amended and supplemented by law no. 16/010 of july 15, 2016 be revised. that the prior investigation of the labor inspector be made mandatory before any decision is taken by either party; without omitting the extension of the investigation period from fifteen to thirty days. these safeguards will help to secure employment, which has become a rare commodity in the drc, while avoiding abuses by the economically strong party