What you need to know when you are facing a dismissal due to dysfunction

Are you facing a dismissal due to dysfunction or poor performance from your employer in the Netherlands? Edwin van Jaarsveld from Dismissal Specialist explains what your rights are as an employee.

It can happen to you just like that. Your boss states, all of a sudden, that they are not satisfied with your performance. Can you be fired just like that? Fortunately in the Netherlands, it is not that simple.

When is there a case of dysfunction?

There can be several reasons why your employer believes that you are not functioning well. Here are some examples:

• Tasks are not being performed correctly
• Work is often not completed on time
• Employee handles customers poorly
• Employee is passive instead of proactive
• Employee makes too many mistakes
• Poor relationships with colleagues
• Employee is frequently late
• Sales targets are not met
• Employee cuts corners
• Employee frequently engages in arguments with other employees or with management

Even if you are not performing well in your job, it is not easy for your employer to dismiss you. This is because the Dutch law and case law impose strict requirements for a dismissal as a result of poor performance or dysfunction.

Conditions for dismissal through dysfunction

For a dismissal due to dysfunction, at least the following conditions must be met:

• Your employer must prove inadequate performance. Evidence can be provided, for example, through assessment and performance reports, statements from colleagues, notes, reports and so on.
• The employer must give you sufficient time to improve your performance. They must also help you do this with coaching or offering additional training or courses, for example. This is called a Performance Improvement Plan (PIP) or an improvement process.
• If your performance is demonstrably inadequate despite an improvement plan, the employer must still try to re-employ you (in another position for example) before dismissal is possible.

Dismissing an employee is often not easy

As mentioned above, there are strict requirements for dismissal on grounds of dysfunction. In addition, the demands an employer makes of an employee must be realistic. For example, demanding a certain sales result (turnover) from employees working in sales is often unrealistic, especially if they must sell a "difficult" product or service.

Dismissal through the court

Because there are strict requirements for a dismissal due to dysfunction, an employer will not easily take your dismissal case to court - but it is, of course, possible. For a successful dismissal case due to dysfunction, the employer must meet all of the conditions mentioned above.

In practice, this is not an easy feat. In fact, more than half of employers' requests for the dismissal of an employee are rejected by Dutch courts.

Settlement agreement in case of dismissal from dysfunction

Many employers are aware that dismissal due to dysfunction is not easy to achieve through the courts. Most employers therefore offer the employee a severance arrangement (or a settlement agreement) when they terminate the employment contract by mutual agreement. The arrangement offered usually consists of a date on which the employment contract ends with the offer of severance pay.

Note: It is often not wise to accept the first settlement offer from the employer. This is because more favourable terms of dismissal can usually be agreed upon through negotiation, for example: a later date employment end date, paid time off, a higher severance pay or a positive certificate. In this case, it is best to seek advice and assistance from a dismissal specialist.

Are you entitled to severance pay upon dismissal from dysfunction?

If you have not misbehaved at work, as an employee you will also be entitled to severance pay in the event of a dismissal for dysfunction. This compensation consists minimally of the transition compensation, which amounts to about 1 / 3 months salary per year of employment. But often a higher severance payment can be advocated for and agreed upon. In fact, many employers want to avoid a long dismissal process with an uncertain outcome and are willing to agree on a higher compensation to speed things along.

Are you facing the threat of dismissal because of your performance? Then contact a dismissal specialist immediately. They can assess your case and negotiate a favourable dismissal settlement for you (think: a good severance payment and a WW-safe arrangement). They can also help you to avoid being dismissed, if that is your preference.

The team from Dismissal Specialist have more than 25 years of experience in dismissal cases and have successfully helped thousands of employees. Would you also like to get help with your (potential) dismissal and/or your severance agreement? Call +31 (0)20 6160 120 or email them for free initial advice.