Every employer unfortunately sometimes has to deal with employees who are not functioning well. This involves underperformance in the sense of not meeting the job requirements, misconduct, and other personal grounds. It is important that you, as an SME entrepreneur, know how to properly build an improvement and dismissal file. A correctly built file simply results in the employee either functioning better, behaving better, or, failing that, dismissal being possible. A good file is essential to successfully achieve a dismissal.
Masterclass: Building a file and dismissal
Do you want to solve, or even prevent, problematic personnel files? In a masterclass by The Legal Company, mr. Marit Mulder explains how to build a sufficient and correct file so that, if the employee’s behavior fails to improve, you can successfully dissolve an employment contract at the subdistrict court. The masterclass will take place on 25 January 2024. Are you interested? For more information and registration, click here!
In this article, we take you as a reader through a practical example to show how difficult underperformance can be. This ruling concerns an employee who was hired by the employer as “Specialist Process Characterization” on 1 June 2021. The employer subsequently wants to dissolve the employment contract with the employee on the d-, g- or i-ground (see Article 7:669(3) of the Dutch Civil Code).
What is this case about?
According to the employer, this employee was not only hired with the aim of supporting his colleagues and clients with his knowledge, but he also bears responsibility for the sales of products.
The employer is not satisfied with these sales activities. Despite repeated conversations about this with the employee, he is offered a Performance Improvement Plan (hereinafter: ‘PIP’). A PIP is the improvement plan.
With much reluctance and resistance, the employee started the PIP. But the employee later withdrew and indicated he did not want to continue with the PIP. However, the employer continues to maintain that the employee does not fulfill the commercial aspects of his position. The employee, on the other hand, states that he applied for a position without any commercial aspects. Also during the job interview, the employee gave no indication that he had a sales background. His role would be purely scientific or technical.
At the start of the PIP on 1 March 2023, the commercial aspects of his position were also not addressed. The employee is furthermore willing to develop sales skills, but not within the framework of an improvement plan offered to him. The employee therefore argues that the employer should have offered him a training or development plan. And precisely not an improvement plan.
Ruling regarding underperformance
On this situation, the subdistrict court ruled as follows. The most important thing in this case is that there is a fundamental disagreement between the parties about the content of the employee’s position. And thus also about the employee’s tasks and responsibilities. The employer states that the position consists of two parts:
- A technical component and
- a sales component
There are no complaints from the employer about the technical side. According to the employer, the employee is falling short in the area of sales.
The subdistrict court ruled that it has not been sufficiently established that it was clear to the employee that he would carry out sales activities, and what those activities would even entail. It is not the case that an employee automatically has to carry out sales activities simply because he works within a sales organization. In addition, no sales activities were described in the employee’s job description. After all, the employee was hired on the basis of his technical knowledge.
Development plan instead of improvement plan
The subdistrict court therefore shares the employee’s position that, if the employer attaches value to the sales component and knew that the employee did not have this, development of it can only take place through a development plan. An improvement plan is about improving competencies, while a development plan concerns competencies that still need to be learned. The employer should therefore not have offered the employee an improvement plan, but rather a development plan.
However, the employer immediately offered the employee a PIP. A PIP is aimed at improvement and is normally used in the case of suspected underperformance. In this, the employer judged too quickly.
Employee willing to develop
In addition, the subdistrict court ruled that it has not been established that the employee is unwilling to cooperate in developing his sales activities outside the framework of an improvement plan. The employee is therefore open to development.
In view of the foregoing considerations, according to the subdistrict court there is no question of underperformance by the employee. This results in the rejection of the employer’s request for dissolution.
Legal framework for underperformance
Dismissal due to underperformance can be based on Article 7:669(3)(d) of the Dutch Civil Code, also known as the ‘d-ground’ among the grounds for dismissal. The subdistrict court can dissolve the employment contract if the employee is unsuited to perform the agreed work, for reasons other than illness or disability.
The employer requesting the dissolution must put forward the facts and circumstances underlying the request. If this is then successfully disputed by the employee, the employer will also have to provide evidence.
A good beginning is half the work
Carefully weighing all aspects of underperformance and closely examining the consequences for all parties involved is of great importance. That is why it is advisable to think together with The Legal Company about a dismissal due to underperformance, should such a situation arise within your company.
Or come to our masterclass on 25 January, where mr. Marit Mulder (an expert in employment law) will train you so that you can build a personnel file using the correct legal steps. This in accordance with recent legislation and case law. You will also receive the presentation, including a step-by-step plan for how to act in the most common forms of underperformance. Think of not properly meeting job requirements and tasks, minor forms of misconduct (being late, acting contrary to work instructions), more serious forms of misconduct (theft or fraud, swearing, aggression in the workplace) and labor disputes/disturbed working relationships.
Practical information about the masterclass:
- Date: Thursday 25 January 2024
- Duration: 8:30 am – 12:30 pm
- Location: TLC office, Laan Nieuwer-Amstel 4b, 1182 JT Amstelveen
- Cost €395 excl. VAT per participant
- Register: Click here!
Nothing is as changeable as legislation and regulation. Please note that our blogs may no longer align with current legislation and regulations and may therefore be outdated. If you have questions or a problem relating to this blog, or if you require legal assistance, please contact us.
