Obligations in case of dismissal due to underperformance

18 Jul 2019

The employee's inability to perform the agreed work, is one of the grounds for dismissal that the law stipulates. This requires, among other things, that the employee is informed of the underperformance in a timely manner, has been given sufficient opportunity to improve the performance and the underperformance may not be the result of inadequate care of the employer. The question is how far this duty of care obligation of the employer reaches.

Claire Vogel

Last month, the Supreme Court expressed its opinion on what assistance, support and guidance may be expected from the employer in a specific case. The Supreme Court emphasized that the law does not determine the manner in which the employer must provide the employee with an opportunity to improve the performance. In view of the major consequences that a dismissal on the grounds of underperformance can have for an employee, the employer is required to offer the employee a serious and realistic opportunity for improvement. What may be expected from the employer in a specific case and how this should be recorded, depends on the circumstances of the case. The following circumstances may play a role:

  • the nature, content and level of the position;
  • the (level of) education and experience of the employee;
  • the nature and extent of the underperformance;
  • the duration of the underperformance measured from the moment the employee was informed thereof;
  • the duration of the employment;
  • performance improving actions that have been undertaken;
  • the extent to which the employee is open to criticism and is committed to improvement; and
  • the nature and size of the company.

In the case in question, the Supreme Court ruled that the employer, given the circumstances, had given the employee sufficient opportunity to improve the underperformance. The responsibility to achieve improvement, however, was also (partly) made the responsibility of the employee. It concerned a managing consultant at a consultancy firm with several underperformance evaluations. The employee was over a longer period of time informed about the underperformance, and the underperformance was expressed in a failure to meet sales targets, unsatisfactory communication, internal conflicts and insufficient collaboration with colleagues and customers, a lack of self-reflection and inability to handle feedback.

The employer indicated that the employee should undertake a self-assessment and understand the nature of the underperformance and the employee was invited to think about how improvement could be achieved (by means of what specific measures or training) and within what period. However, the employee had shown insufficient initiative. This decision of the Supreme Court shows that under certain circumstances (part of) the responsibilities to reach improvement can be designated to the employee. In that respect, improvement is a joint effort of both the employer and the employee.

Possibility WAB

Interesting is that a "cumulation ground" will be introduced under the WAB (as of 1 January 2020), this means that the court may also come to a dismissal, in case of a combination of dismissal grounds. For example, the combination of a poor performance case and a disturbed employment relationship case. If the underperformance file is (still) insufficient in itself, adding a disturbed employment relationship file may justify the dismissal. This cumulation ground is referred to as the "i-ground" and in case of a dismissal on the i-ground, the court may grant the employee an additional compensation of up to half the transition compensation on top of the transition compensation that is already due.