Employers beware: empowerment policy not a substitute for dossier compilation

If you are a loyal reader of our blog, then by now you know how important it is for employers to build up a file when they feel that an employee is not performing well. Employers who pursue a different policy, under the trendy name of 'empowerment', are proverbially coming for a coffee. This is evident from the ruling we are discussing this week. Read more here.

Facts

The case concerned an employee who had been employed by Red Bull as a Customer Service Specialist since 17 December 2012. Red Bull went to court with the request to dissolve the employment contract on the grounds of malfunctioning (Section 7:669 subsection 3 under d BW). It was argued that the employee was not suitable for the stipulated work, despite supervision, coaching and weekly meetings. Red Bull was of the opinion that it had informed the employee in time and had given her sufficient opportunity to improve her performance.

However, the employee sees things completely differently: she indicates that there is no evidence of her malfunctioning. She was not informed that Red Bull was dissatisfied with her and she was not given the opportunity to improve herself. Moreover, the termination was related to illness.

The employee submitted a counter-application for dissolution of the employment contract, but on the grounds of a disrupted working relationship. She also applied for equitable relief.

No dissolution on grounds of malfunctioning

The subdistrict court made short shrift of Red Bull's request for dissolution: there was no reasonable ground for dissolution on the ground of dysfunction. Although there had been talks between Red Bull and the employee, it was not clear from these that Red Bull took the position that the employee was performing inadequately. This is also not apparent from the appraisal reports. The stress complaints (which the employee experienced due to pressure of work) were discussed, but the functioning as such was always assessed as good. The fact that the employee has had several breakdowns does not mean that she is unfit for the job.

In fact, until 2021 Red Bull has always praised the employee for her good work and efforts and rewarded her with bonuses, salary increases and a 'swing factor' bonus for a very special performance. The employee has also performed well in a customer satisfaction survey.

In short, Red Bull should have built up a file: discussing and recording the apparent malfunctioning. That did not happen. Red Bull itself states that it has an 'empowerment' policy in which employees are encouraged, rather than reprimanded or warned. But the court did not pay much attention to this: such a policy does not detract from the obligation to at least inform the employee in writing of the apparent malfunctioning and the far-reaching consequences thereof. It was only after the employee had received the request for dissolution that she learned that Red Bull considered that she was performing inadequately.

Red Bull still refers to an improvement programme, but that was only a PIP programme that only dealt with dealing with work pressure and stress. There was no adequate improvement process for malfunctioning. It was also unclear which objectives the employee had to achieve in order to improve her functioning.

It also appears that Red Bull itself admits that the request for dissolution had to do with employee's illness. It is therefore no surprise that the court rejected Red Bull's request for dissolution.

Dissolution for disruption of working relationship and fair compensation

The employment contract was dissolved, however, at the request of the employee. The subdistrict court ruled that the employment relationship had been disrupted due to Red Bull's seriously culpable actions.

The subdistrict court awarded the employee a transitional allowance as well as fair compensation of € 52,204 gross. The Subdistrict Court took into account that it is likely, or at least cannot be ruled out, that the employee's complaints arose in part due to excessive pressure of work, while Red Bull only realised the need to do something about this after the proceedings had begun. During the course of the employee's employment, the problem of excessive pressure of work was discussed but insufficiently addressed or resolved.

The court also blamed Red Bull for the fact that as a result of the employee's mentioning (which Red Bull always seemed to stimulate) of a high pressure of work and the stress that this caused her, Red Bull suddenly decided to terminate the employment without any prior notice and without any reasonable grounds.

For months, the employee remained in the dark about the reason for the termination of her employment. When the employee engaged an agent for legal assistance, Red Bull refused to communicate with the agent and insisted on replacing him, even though the employee had indicated that the communication should take place via the agent. Only after the submission of the request for dissolution did the employee know why Red Bull wanted to part from her.

The Subdistrict Court noted in this respect that the employee had continued to work all this time, had achieved her targets and had not been criticised by Red Bull for her performance. Nevertheless, Red Bull excluded her: her colleagues received a new telephone, but she did not; she was not welcome at events, and she was forbidden to go to a (private) farewell dinner of one of her best colleagues. To make matters worse, Red Bull refused to review her performance and targets, and to award bonuses and salary increases.

It is therefore not surprising that the subdistrict court ruled that this was not good employment!

To complete the picture: on the day after the oral proceedings at the court, the employee was suspended without prior notice and denied access to the office and the IT systems. This made all communication impossible, both internally and externally. Despite insistence, the employee was no longer given access to her laptop and email, as a result of which she was impeded in putting forward a defence. This led to the feeling of being 'bullied away'.

Concluding remarks

The employment contract was dissolved, with the award of (in outline form) transitional damages of €11,285 gross, the aforementioned fair compensation of €52,204 gross, €1,881.55 in collection costs, €9,680 in legal fees, €3,220 gross in bonus and the non-competition and relationship clause becoming inoperative.

The judgment, including all facts and considerations of the subdistrict court, can be read here.

This case mainly shows how employers should not proceed! Are you an employer and do you want to do things the right way? Or are you an employee and are you confronted with a similar situation? SPEE lawyers and mediation will show you the way.

SPEE advocaten & mediation Maastricht