Lack of performance? Investigate possibilities to reassign the employee before firing him
The employer had requested the court to terminate the employment agreement with one of its employees because of lack of performance. The court contemplated that there was indeed a lack of performance by the employee. Nevertheless the court rejected the employer’s termination request. The reason: the employer did not meet his reassignment duties.
The court contemplated that an employer should investigate whether or not he can reassign an underperforming employee to a suitable position, where applicable with additional training. The employer needs to actively support the employee, take initiative with regard to reassignment and take away obstructions to a new position. How? By investigating in how far discrepancies between the employee´s resume and vacancies can be removed and by looking for concrete solutions in discussions between the employee and his superiors.
The employer at hand had not investigated the possibilities to reassign the employee to a suitable position. The only action that the employer had taken was pointing the employee to vacancies and offering help with applications. The court ruled that these actions were insufficient because they are signs of a passive attitude where all initiative is placed with the employee. Furthermore the court reproached the employer that he did not even invite the employee when the employee had applied for a position within the employer’s organisation.
The outcome of this case is quite disappointing for the employer, even the more so since the court ruled that the employee did indeed underperform.
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Solid case building is crucial for termination of employment
This court ruling shows once more that, under the Dutch Work and Security Act (the ‘Act’), it is very important to act carefully and to thoroughly build a case against employees who underperform. A solid ground for termnation alone is not sufficient. The employer needs to convince the court that reassignment of the employee to a suitable position within a reasonable space of time, where applicable with additional training, is not possible. The employer should assume an active attitude and keep solid records of both the employee´s job requirements and the agreed upon targets.
The good news for employers is that, in case that the requirements for dismissal have been met and the court decides the dissolve the employee’s employment agreement, the so-called transition allowance under the Act (Transitievergoeding) is much lower than the severance payment that was payable before the Act came into force.
Would you like to know more about case building and dismissal under the Act? Please contact CLINT. We’re here to help.
