What to do when an employee is dysfunctional

Dysfunctioning employees are often difficult cases for employers. In practice, we often see employers run into trouble because they only seek legal advice when the employee has been dysfunctional for a long time and the employer now wants to part with a dysfunctional employee. This can involve high costs if no file has been built up. This is because the ground for dismissal "dysfunction" requires a careful process with extensive dossier building on the part of the employer.

Ground for dismissal dysfunction

If an employee is dysfunctional, dissolution of the employment contract can be requested from the subdistrict court. The following must then be demonstrated:

- The employee is unfit for the stipulated work. The stipulated work refers to the agreed position.
- Dysfunction is not the result of the employee's illness or infirmity.
- The dysfunction is not the result of insufficient care from the employer for training or working conditions of the employee.
- The employee was informed of the dysfunction in a timely manner and had ample opportunity to improve.
- The employee cannot be reemployed in an alternative suitable position (possibly after training) within a reasonable period of time.

Important: file construction

To demonstrate that the above conditions for the ground for dismissal for dysfunction have been met, it is important that every step of the process be documented in writing. Consider, among other things, the following documentation:

- A clear job description. This forms the basis of functioning and the test of whether it is met.
– Performance reviews. Record well what is discussed, what is going well, what requires improvement and how it will be achieved.
– Records of all interviews and/or comments about the employee's performance. Ensure that conversations are still confirmed via email, for example, so that it can be proven in writing that the employee was aware of this and it was discussed.
– An improvement plan. Case law shows that great value is attached to following an improvement plan. Such an improvement plan specifies concretely and as objectively as possible what goals the employee must achieve within a certain period of time in order to successfully complete the improvement process. It aims to give the employee the opportunity to improve, with appropriate guidance and evaluation. Evaluations must also always be in writing. How long an improvement program should last depends on all the circumstances of the case (including, for example, the points for improvement, the nature of the employment, the duration of the employment, etc.), but a period of 3 - 6 months is usual. The improvement plan should clearly state what the consequences will be if the improvement plan is not achieved and thus that dismissal may be a consequence.
- After the expiration of an improvement plan, a (written) final evaluation be established.

Tip: be careful when awarding bonuses. After all, it is implausible to claim that an employee has been dysfunctional for a long time, if he did always receive a bonus based (in part) on performance.

Employee does not want to cooperate in improvement program

It frequently happens that the employee disagrees with the alleged dysfunction and therefore also refuses to cooperate in the improvement process. Can the employee then be fired?

Case law shows that it is up to the employer to assess whether an employee meets the job requirements. If the employee refuses an improvement plan, the employee must be able to properly justify why and, for example, that the improvement plan contained disproportionate and/or unreasonable objectives. The fact that the employee has a different view than the employer is generally irrelevant, as it is the employer who determines how a position should be filled and what standards should go with it. Refusing a course of improvement may therefore cause the subdistrict court to dissolve the employment contract. However, this will always have to be assessed on a case-by-case basis.

Settlement Agreement

Case law shows that the bar for grounds for dismissal for dysfunction is quite high. It is therefore common for parties to part company with a settlement agreement when a situation of dysfunction occurs and it seems that the parties would be better off parting company. Even then it is important to build up a file. The better the file structure is, the stronger the employer's negotiating position.

Questions about dysfunction and/or need support during such a process? If so, contact us for tailored advice.