When a complaint from a GP revealed that an internist-oncologist performed below standard, the employer quickly proceeded to collect evidence and to aim for terminating the doctor’s employment. However, both the Subdistrict Court and the Court of Appeal denied the request for rescission of the employment agreement. Doctors too should be given a fair chance to improve their performance. The Court of Appeal considers this not detrimental to patient security.
Facts
The doctor concerned had been employed by the hospital as an internist-oncologist since 2012. In 2019, a GP complained to the hospital about the doctor's performance. The doctor also did not have her registrations in order. For example, she was not registered in the BIG register for some time, and she never registered herself as an internist-oncologist. The doctor was suspended by her employer. In the weeks following her suspension, more serious errors and examples of sloppiness in the treatment of patients came to light. These were discovered by colleagues after they took over the treatment.
At the hospital's request, the ‘Investigation Committee for (possible) bad performance of medical specialists’ investigated the doctor's actions. The Committee concluded that the doctor was performing badly and that there had been patient security issues. An improvement plan was not advised, due to the structural nature of the bad performance and the non-coachable parts thereof.
The employer requested the Subdistrict Court to terminate the employment agreement. The Subdistrict Court denied this request, whereupon the hospital appealed.
The Court of Appeal
On appeal too, the employer's request for a rescission was denied. According to the Court of Appeal, there was no fully-fledged ground for dismissal.
First of all, the employment agreement could not be rescinded on grounds of a culpable act or omission of the employee. The doctor could trust that not having her registrations in order would not have any consequences for her employment, since no consequences had been attached to this before. In addition, the Court of Appeal held that there was no attributable culpability.
The employment agreement could not be rescinded on the D ground (inadequate performance) for dismissal either. As an employer, the hospital needs to guard not only the interest of the patients, but also that of the employees. An employee must seriously and realistically be offered a chance to improve. In this case, no improvement plan was started up, which was wrong. The mere fact that internal rules imply that the hospital is in principle bound by the Committee's advice (and the Committee did not advise an improvement plan) does not alter this. The Court of Appeal deems it possible to design an improvement plan in which the care and safety for patients are ensured.
There was no seriously and permanently damaged employment relationship either. The fact that the relations between the parties have come under (serious) pressure is largely attributable to the hospital. It is therefore up to the hospital to change its course, which was aimed at ending the employment, to giving the doctor a serious and realistic chance.
Conclusion
An employee who is performing badly must be offered the chance to improve his or her performance. Because this case concerned a doctor, the hospital looked at the situation as a dilemma between employing a bad doctor or opting for patient security. The Court of Appeal did not go along with this. Even if the employee has made mistakes in the treatment of patients, he or she must be offered an improvement plan. This ruling illustrates that a fully-fledged ground for dismissal on the basis of bad performance is subject to strict requirements.
Feel free to contact Ester Damen if you have any questions regarding this topic.
