Higher Severance Pay for Failure to Conduct Performance Appraisal Interviews

Year of publication

2016


Year of publication

268


Reference

Sub-district Almelo, March 14, 2016, www.rechtspraak.nl, ECLI:NL:RBOVE:2016:882


Decision

The Sub-district Court takes the view that the fact that an employer who for many years, did not conduct any performance appraisal interviews and then suddenly confronts the employee with complaints from staff members about his work as a leader can be blamed for seriously culpable employer conduct. As a result, the employer did not only have to pay the employee the transitional allowance, but also equitable remuneration when the employment contract was dissolved for a disrupted employment relationship.

The employee was 59 years old and, since 1979, he was employed by an organization in the cultural sector that was the legal successor of the Provinciale Bibliotheek Centrale. The em-ployee had a management position with a library and had been the Managing Director of the Provinciale Bibliotheek Centrale in the past, but held a lower position by now. Till 2004 there had always been performance appraisal interviews, in which the employee had predominantly positively been evaluated.

In 2014 there is a discussion with the employee following an incident, but there is no further follow-up. Then, on April 13, 2015, the employee was faced with the information that there is some unrest among the library employees under the employee’s supervision and that the Managing Director has doubts about the employee’s role as a supervisor. Subsequently, on April 16 and 20, 2015 discussions take place between the employer and the employees of the library, showing that the employees are dissatisfied with the way the employee supervises. Then, on April 23, 2015, the employee is suspended. An attempt to solve the problems by means of mediation already foundered at an early stage. When the Sub-district Court decides, in summary proceedings, that the employer has to allow the employee to resume work, the employer indicates that the employee can resume his work, but that the staff of the library do not want to have any contact with him during the first week. When, subsequently, the em-ployee announces that, in that case, he will not resume his work the employer summons the employee to resume work anyway and the employer ceases to pay the wages when the em-ployee does not do so. When the employee indicates that he wants to keep one-on-one discus-sions with the staff of the library, if necessary accompanied by an independent person, the employer claims that the one-on-one discussions will take place in the presence of the Manag-

ing Director. Since the employee refuses this and does not resume work, once again, the em-ployer suspends the employee.

The employer then asks the Sub-district Court to dissolve the employment contract because of the employee’s seriously culpable behaviour and, in the absence thereof, because of a dis-turbed working relationship. The Sub-district Court takes the view that the refusals to carry out the work, presented by the employer, do not support any seriously culpable behaviour of the employee. The first "refusal to carry out the work" was a result of the fact that the em-ployer had forbidden the employee to contact the staff of the library and the second refusal was due to the fact that the Managing Director wanted to attend the one-on-one discussions with the employees. The Sub-district Court holds the opinion that the employer’s behaviour is different from what should have been expected. Yet, the Sub-district Court dissolves the em-ployment contract for the disturbed working relationship. Even though the Sub-district Court regards the employer guilty of the disruption of the working relationship it is, nevertheless, decided to dissolve the contract, because the disruption is serious and of a lasting nature. Therefore, the employer has to pay the maximum transitional allowance of € 75,000. In addi-tion, the employee had applied for an "equitable remuneration". The Sub-district Court be-lieves that the case represents a substantial violation of the employer’s obligations arising from the employment contract and also assigns this equitable remuneration. For the Sub-district Court the major reasons on which this decision is based are: that initially, since 2004 the employer did not conduct any performance appraisal interviews, that then, in 2015, the employer suddenly confronts the employee with criticism from the employees and that, sub-sequently, the employee is suspended without having properly been informed and without having given him the opportunity for reply. But also the employer’s failure to adequately meet the obligations from the decision in the summary proceedings, the discontinuation of the wage, the requirement to have the Managing Director attend the one-on-one discussions and the second suspension play a role in the Sub-district Court’s decision to consider the em-ployer’s behaviour as being seriously culpable.

In setting the amount of the equitable remuneration based on legislative history, the Sub-district Court assumes that the damage caused to the employee by the dismissal, should not play a role because the damage is deemed to be covered by the transitional allowance. The amount of the compensation should be determined by the seriousness of the employer’s cul-pable behaviour. Since equitable remuneration may not be granted easily, the Sub-district Court takes the view that a substantial compensation should be granted once it has been de-cided to grant equitable remuneration. The Sub-district Court determines a gross amount of € 80,000 as the equitable remuneration.


Comments

The question of when a conduct is seriously culpable, requiring employers to pay equitable remuneration in addition to the transitional allowance and how much the equitable remu-neration should be, are the questions raised by the introduction of the Work and Social Secu-rity Act on July 1, 2015. Therefore, case law on this is still fully in the development phase. It seems, however, that the equitable remuneration is considerably more frequently granted

than intended in the mind of the legislature. In this context, the legislator calls it a "mouse hole" to indicate that granting the equitable remuneration should be highly exceptional. On the other hand, however, the legislature gave examples that do not really create the impres-sion of real exceptionality. Furthermore, there seems to be a tendency to grant higher equita-ble remunerations than in the first months after the introduction of the Work and Social Secu-rity Act.



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