The subdistrict court recently ruled on a termination request from the Krimpenerwaard municipality to terminate the employment contract of a spatial planning employee. The employee, who had been employed since 1990, found himself in a protracted conflict with the municipality after years of criticism of his performance and a failed improvement programme. The municipality submitted several termination requests, over the years, but they were always rejected. Eventually, the municipality again submitted a request to dissolve the employment contract. The subdistrict court considered whether the municipality had made sufficient efforts and whether the employee was actually dysfunctional. Curious about what came out of this?

Facts

The employee joined the municipality of Ouderkerk aan den IJssel, later part of the municipality of Krimpenerwaard, in 1990. He worked as a spatial planning employee. From 2016, the municipality began to repeatedly criticise his performance. This criticism focused in particular on the progress of his work, exceeding deadlines and his way of communicating. Despite attempts to improve his performance, the problems kept piling up. The municipality proposed improvement programmes, which the employee went through, but which did not lead to the desired result.

A new improvement scheme was proposed in 2021. The employee was given simpler tasks, such as handling ‘flash’ permits and advisory work for colleagues. Nevertheless, in January 2023, the municipality ruled that the employee had not made sufficient progress. He remained structurally deficient in crucial competences. This led to the employee being banned from handling new permit applications from May 2023.

Previous attempts by the municipality to terminate the employment contract were rejected by the court. This was because the court had always held that the municipality had not done enough to redeploy the employee appropriately and had not given him enough opportunities to improve himself. After a dispute over a settlement agreement, in which the employee returned to his agreement to the termination within the reflection period, the municipality submitted a new dissolution request to the subdistrict court. This time it invoked dysfunction (Section 7:669(3)(d) of the Civil Code), a disrupted working relationship (sub g) and a combination of grounds (sub i).

Subdistrict court proceedings

Following the most recent termination request, the subdistrict court ruled that the employee was unfit for the stipulated work. The judge took into account that the employee had faced consistent criticism of his performance since 2016 and that several managers had identified the same shortcomings. Despite improvement programmes and coaching offered by the municipality, there had been no significant improvement.

The subdistrict court stressed that the municipality had offered the employee sufficient time and guidance to improve his performance. However, the employee had structurally denied his shortcomings and had not shown sufficient self-reflection. As a result, it was no longer possible for the municipality to have confidence in continued cooperation.

The possibility of a suitable reassignment within the municipality was also considered. The municipality had provided detailed overviews of redeployment possibilities, but these showed that no suitable positions were available for the employee. The subdistrict court concluded that the municipality had fulfilled its reinstatement obligation.

Based on these considerations, the court did consider that this time termination of the employment contract was justified. The municipality's request was therefore granted and the employment contract was terminated. The employee's counter requests, including a request for reinstatement and a request for equitable remuneration, were rejected.

You can read the full ruling here.

Conclusion

This case highlights the importance of a well-supported and documented improvement project in cases of dysfunction. Employers should make sufficient efforts to give an employee a chance to actually improve, such as offering coaching and counselling.

In addition, the present ruling highlights the employer's reinstatement obligation. When an employee is no longer suitable for his job, other opportunities within the organisation must be considered.

Do you have questions about dysfunction, the ins and outs of an improvement project or other employment law questions? The lawyers and jurists at SPEE advocaten & mediation are ready to provide expert guidance and answer your questions.