In the unlikely event you are faced with the dissolution of your employment contract because of (alleged) malfunctioning, it is good to know that judges might grant ample compensation when your employer lacks a complete personnel file of malfunctioning and has not given enough opportunity to improve yourself.
In a noteworthy case, an employee was granted a compensation of € 300.000,- by the Dutch sub district court. The fact that the international employer was unfamiliar with Dutch employment law was no excuse.
The employee started working for the international company in 2008, with business locations in Asia and North-America. In 2011, he was promoted to Human Resources Manager. During his first evaluation as manager in January 2012, he was informed by his employer that he did not perform the job effectively. According to his employer, the employee failed to take (enough) responsibility for his department and he did not respond correctly to criticism. Moreover, the employee engaged in emotional unstable behavior which did not match the culture of the organisation.
Only five days after this evaluation, the employer suspended the employee, blocked his email-account and requested the sub district court dissolve the employment agreement.
Different management style
The sub district court was apparently not amused by the employer’s line of actions. In the judge’s opinion, the employee had performed his tasks properly since the beginning of his employment relation. No kind of malfunctioning could be proven sufficiently to the court. In addition, the alleged malfunctioning had not been explicitly pointed out to the employee. From the personnel file, it could only be proven that the employee might have had a different management style. However, another management style does not necessarily result in incapability of performing ones duties, according to the court.
Performance improvement plan
The sub district court neither agreed with the statements of the employer that a Performance Improvement Plan had been given to the employee. As the lapse of time between the evaluation and the request to the sub district court to dissolve the employment agreement was only a week, it did not sound very credible that the employer actually gave the employee the opportunity to improve himself. The employee was not even provided the opportunity to write down his own comments in reply to his evaluation.
This way of handling the issue, in combination with the suspension and blocking the email-account of the employee, meant the employer acted against what is expected from an employer in the Netherlands.
Being recently established in the Netherlands and therefore unfamiliar with Dutch employment law was not a valid excuse for the international employer.
According to the Court, due to the current dispute, dissolution of the employment agreement was inevitable. However, the employee was entitled to a compensation of € 300.000,-
In the Netherlands, it is important for an employer to start writing a Performance Improvement Plan if an employee is performing poorly. Furthermore, it is of great importance that an employer starts monitoring all the efforts undertaken to coach the (malfunctioning) employee.
In this case, the employer’s behaviour was clearly unacceptable, according to what is expected from employers in the Netherlands, which resulted in the employee making a small fortune.
Do you need legal advice?
Are you are facing dissolution of your employment contract due to non-performance? If you believe your employer has not given you a fair opportunity to improve your performance, get advice on your legal options from our experts in employment law.
Godelijn experienced an international upbringing and education as an expat child living in Africa and England. Back in The Netherlands, she studied law at the University of Utrecht (1990). She then embarked on her legal career as a lawyer by working 10 years for the well-known law firm of ‘Wladimiroff en Spong Advocaten’. In 2000 she joined GMW lawyers as a partner and is the head of the Labour law and Pension section.
Godelijn specialises in international employment law and has extensive experience in dealing with both non-contentious and contentious international employment matters including (collective) redundancy packages and dismissal. She works for both companies and individual employees, enabling her to keep an open mind to both sides of a case. Naturally she helps her clients when a problem has arisen, but prefers to act before an escalation has taken place. Advice on a fair Human Resource policy is an essential part of her work.
Godelijn Boonman is considered to be the undoubted employment specialist for the expat community because she is bilingual, has a large international clientele and a wealth of experience in international employment law matters. She is therefore frequently asked to be the key note speaker at international seminars.
Godelijn has a keen interest in the international community and is a member of the advisory board of ACCESS .