At this time of year, with bi-annual appraisals approaching, we should focus on employees performing poorly. Below, Eva will give an explanation of the file employers have to compile if they want to let an employee go. What do they need?
Employers are groaning and moaning; since the introduction of the Work and Security Act, dismissing employees has become even harder than before. Workshops entitled ‘Talent Management’ or courses in ‘File-Building For Managers’ are in huge demand. To help you, in this article we offer you a checklist to use for each dismissal file, with brief explanations based on recent case law.
The Six Requirements Checklist
An employer who requests the Court to rescind the employment agreement of an employee who is performing poorly will bring forward “ground D”. The Work and Security Act (“WWZ”) prescribes what six grounds an employer must have fulfilled before he can obtain a rescission. These are the six requirements, each followed by a brief description:
- The employee is ‘unsuitable for performing the stipulated work’ because he does not fully meet the requirements set on the job. The unsuitability may also lie in the employee’s behaviour, and may concern a relatively small part of the work, for example cooperation problems, as the Court of Appeal of Arnhem-Leeuwarden has ruled in a recent judgment.
- The aforesaid unsuitability for the job does not follow from impairments of the employee. If there are such impairments, it is possible that ground B (long-term illness) or ground C (frequent sickness absence) apply as a ground for dismissal.
- The employer has discussed and carefully recorded his criticism of the employee’s performance with the employee, preferably in appraisal interviews. The Court of Appeal of The Hague recently held that if an employee’s performance has been rated ‘satisfactory’, there can be no question of inadequate performance, and rescission will be denied. Moreover, an employer is expected to make himself clear. Announcing ‘not so pleasant measures’ is not the same as giving a final warning, and will result in a denial of the request, according to the Subdistrict Court of Rotterdam.
- The employee must have been given sufficient opportunity to improve his performance, for example through counselling, coaching or an improvement plan. For an unskilled worker, an improvement process of six weeks may already suffice, in the words of the Court of Appeal of Arnhem-Leeuwarden.
- The unsuitability is not the result of insufficient care for the employee’s training or his employment conditions. Since the WWZ is in force, the employer has a statutory duty to ensure that the employee can follow such training as is necessary for the performance of his position.
- The employer has examined whether the employee can be re-employed in another suitable position, which is or will become vacant during the notice period. Whether a position is suitable depends on the employee’s education, experience and capabilities. The Subdistrict Court of Groningen has ruled that re-employment cannot be an option if the new job has more or less the same job requirements.
Tips for Employers
- Please follow the above checklist, and bear in mind that the more evidence per topic you have, the better.
- Accept that there is no such thing as the perfect file. Even if your application meets all conditions, there is no guarantee that the employment agreement will be rescinded.
- If the employee has been employed for two years or more, he will be entitled to the transition fee upon termination. Serious culpable acts on the part of the employee are rare. It is only in such rare cases that the employer will not have to pay a transition fee.
This article has also been published as a blog on Management Team (MT.nl) (Dutch) on 26 July 2017.