The question of whether an underperforming employee should be dismissed is one that preoccupies many employers.
The first question an employer asks us in this situation is: how much will it cost me to dismiss the employee? However, the first question asked by the district court is: does the situation warrant dissolving the employment contract in the first place?
As an employer, this means it is imperative that you have assembled a proper file on the employee and the dismissal. Since this file cannot be assembled after the event, it is very important that you take action while the employment contract is still running. This does not mean filing a detailed report every day, or even every week; however, you do need to properly document all the key issues. Something like a simple memo of a conversation, with comments about positives and negatives of the employee's performance (which you must get the employee to sign!) comes in useful when creating a file. Other things you should document include the improvement process and how it is implemented, and the support given to the employee in order to improve their performance.
In a nutshell, it is important to cast a critical eye over how your employees’ performance is documented! We are, of course, happy to assist you with this.
Another point that is sometimes overlooked in practice is that, as an employer, you have a legal obligation to offer training to your employees. This obligation came into force on 1 July 2015 and is set out in Article 7:611a of the Dutch Civil Code.
The importance of training is also clear from other legislation. For instance, training is one of the requirements that must be met if you wish to terminate the employment contract.
If the reason for termination genuinely is the employee's poor performance, whether you have provided adequate training will be one of the criteria factored into any review, as the poor performance must not be due to a lack of training opportunities.
Incidentally, in certain circumstances the training costs you have incurred can be deducted from the transition allowance you are required by law to pay to the employee.
All of this is yet another reminder of the importance of making sure that all your business and personnel files are in order. Equally clear is the need to take the training obligation seriously. Failure to do so may prevent you from subsequently terminating the employment contract.
If you have any questions, or are in need of advice, get in touch for a no-obligation chat. We will be happy to help!