Redeployment obligation the new obstacle?
- 05 Jan 2017
- Hylda Wiarda
In an earlier news flash dated 13 December last, we informed you of a decision by the Sub-District Court in Assen, the Netherlands, in which an in itself legitimate A-ground, in addition to application the reflection principle, failed because of the redeployment obligation. The Sub-District Court stated that the redeployment obligation encompasses more than merely organising a general job market. In the framework of its redeployment obligations, an employer therefore needs to have a tailor-made approach on an individual level.
Shortly before Christmas, a second decision was rendered, this time by the Court of Appeal Arnhem-Leeuwarden, in which an in itself well founded dismissal ground, in this instance underperformance, stranded short of the finish line on the redeployment obligation.
This matter concerned an employee who was underperforming in his position at PostNL Pakketten. The Sub-District court had ruled that PostNL Pakketten had undertaken sufficient efforts, amongst others by offering an improvement plan, as well as additional external schooling/training (the latter had been refused by the employee), to justify a dismissal based on the D-ground.
The employee did not agree with this point of view and appealed the decision. Initially it appeared that this would not be of any use to the employee, since the Court of Appeal was also of the opinion that there was adequate justification for a termination of the employment based on underperformance.
But then things go wrong for the employer. During the session at the Court of Appeal, it becomes clear that the employee applied for a position at Koninklijke PostNL, part of the same group of companies to which PostNL Pakketten belongs. The employee did not only apply for the job, but was also offered the job. This vacancy came about during the statutory redeployment period, which is equal to the notice period to be observed by the employer and commenced on the date on which the Sub-District court rendered its decision. And although the Court of Appeal – like the Sub-District Court – is of the opinion that the employer did prior to the initial proceedings at the Sub-District Court undertake sufficient effort to redeploy the employee, the employer did not do enough in the subsequent period, namely the statutory redeployment period. And it was precisely in this period that the vacancy at Koninklijke PostNL came about and which position was also offered to the employee. This, according to the Court of Appeal, establishes the fact that in fact there had existed opportunities within the group, so that the Sub-District Court should not have allowed termination of the employment agreement. The employer is therefore ordered to reinstate the employment agreement.
What makes this decision interesting is the fact that neither the Sub-District Court nor the Court of Appeal addresses the nature or scope of the redeployment efforts made by the employer in the period leading up to the court session, in more detail. The decision merely makes it clear that an exemption from work for a longer period of time had been given and that the employee had been able to look for a position elsewhere, either internally or externally, using Mobility. This would imply a generic set of redeployment measures rather than the tailor-made individual approach required by the Sub-District Court in Assen. Apparently opinions are divided on this subject.
The decision does however make it clear that an employer may not come to too early a decision that redeployment of the employee is not an option. Anticipating possible vacancies that may come about in the period up until the (either or not) agreed upon termination date, is mandatory. And not merely within its own organisation, but within the entire group of companies to which employer belongs. Should unforeseen vacancies come about, do make sure that these are brought to the attention of the employee and invite him to apply.
No doubt to be continued …
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