Dutch criteria for dismissal for employee’s unsatisfactory performance

In a recent employment case in the Netherlands, an employer applied for the dismissal of an employee for unsatisfactory performance. The employee would have been incapable of organizing and managing. Following several meetings and warnings, the employer decided to transfer him to another job and location. However, the employee’s work remained below par. Are there sufficient grounds for dismissal? Dutch employment lawyer Sander Schouten explains on the basis of the judgement the criteria for dismissal for unsatisfactory performance that are used in the Netherlands.

Dutch employment agreement terminated due to unsatisfactory performance

In these proceedings, the Dutch Court of Appeal had to determine whether the Subdistrict Court correctly awarded the employer’s request for termination of the employment agreement of the employee on the grounds of unsatisfactory performance (Article 7:669 DCC). In the event of termination on the grounds of unsatisfactory performance, the following points are relevant:

1. Was the employee incapable of performing the stipulated work?
2. If so, did the employer inform him of this in good time and did he give him ample opportunity to improve his performance?
3. Was the incapability due to the employer’s insufficient care for the employee’s training or working conditions?
4. Would the employee’s reassignment have been possible within a reasonable time or would it have been appropriate?

1) Unsuitability of employee

The Court of Appeal considered that there was a case of unsatisfactory performance. In fact, the employee acknowledged this. The employee indicated that the unsatisfactory performance was due to overburden. In this context, the employer rearranged the employee’s tasks and offered him additional support. However, these measures did not result in sufficient improvement.

2) Opportunity to improve?

The Court of Appeal considered that the mere notification of the inadequate performance is insufficient to assume that the employer had given the employee the opportunity to improve his performance. The latter requires that an employer should give the employee concrete and structural instructions so that it is clear to the employee on which points he needs to improve, and further that the employer regularly reviews the performance.

Dutch Court of Appeal: reassignment is opportunity for improvement

However, the Court of Appeal considered that with the reassignment the employer gave the employee the opportunity to improve his performance and thus took action to prevent the employee’s dismissal. The Court of Appeal considered that with this reassignment, the employer gave the employee a real opportunity to continue to work in the business.

3) Had sufficient training been offered?

The employee argued during the proceedings that he had been given insufficient training. He has not substantiated this reproach further. The Court of Appeal considered that it is in the first place the employer’s responsibility to make proposals regarding training to improve an employee’s performance. However, this does not alter the fact that some initiative can be expected from the worker himself. Especially if it is a position with a high degree of autonomy, as in this case the role of project coordinator, in which the employer should not have to keep holding the employee’s hand.

4) Is reassignment possible?

The employer stated that he had no further alternatives. The Dutch Court of Appeal considered that in this case reassignment was not appropriate as the previous reassignment had failed. The Court of Appeal ruled that the Subdistrict Court rightly awarded the employer’s request for dismissal.