No Dismissal for Malfunction Employee

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Sub-district Alkmaar, 23rd February, 2015,, ECLI: NL: RBNHO: 2015: 1421


An employer who was of the opinion that the employee malfunctioned asked the Sub-district Court to dissolve the employment contract, but the Sub-district Judge rejected the application.

Per 1st May, 2013 a plumbing company employed a manager. This happened after the employer had taken over part of the employee’s bankrupt company. During a discussion, on 31st October 2014, the employer informed the employee that the employer wanted to terminate the employment contract because of the employee’s said malfunctioning. The employee was given a proposal for termination of the employment contract by mutual consent. The employer had scheduled an evaluation interview for 9th October 2014, but this meeting did not take place. On 7th October 2014 the employer also declared in an employer’s statement, needed to support an application for a mortgage, not to have the intention to terminate the employment contract in the short-term.

When the employee refused to cooperate in the employment contract termination, the employer requested the Sub-district Court to dissolve the employment contract. To this end the employer stated that the employee was supposed to hold the position of the manager and to be promoted to a position at the highest level, but that, in fact, the employee acted as a project manager and had never outgrown that role. The employee would lack sufficient expertise and communication skills, he would have made mistakes in the calculation and in properly finishing certain construction works, and various clients would have complained about him. The employee denied any malfunction.

The Sub-district Court considered that the employer should have substantiated the malfunction but that the employer failed to do so since no documents had been submitted to demonstrate it. The employer had not contradicted the employee’s statement that he has handled every request

correctly. Likewise, the employee had not previously been confronted with complaints from clients. Performance appraisals interviews with the employee had not been conducted, according to the employer because this is not common practice. The weekly work meetings can not be seen as performance appraisal interviews.

The Sub-district Court indicated that in case of the employee’s malfunction it is the employer’s duty to first confront the employee with the alleged malfunction. Then the employee should be given a real chance to improve his performance and only when after this the employee still demonstrates that he is not able to meet the job requirements, the malfunction may lead to termination of the employment contract. Since the employer has not followed this process, the Sub-district Judge rejected the request to dissolve the employment contract.


In his judgement the Sub-district Judge points out what the employer has to do before an employment contract with a malfunctioning employee can be dissolved. This is nothing new, but usually the Sub-district Court dissolves the employment contract anyway, even if the employer can not substantiate in the prescribed manner that the employee is dysfunctional. In such case the employer’s shortcoming to substantiate the malfunction may constitute a reason for higher severance pay. In this case, apparently, the employer was so far from being able to show the malfunction that the Sub-district Judge did not even want to dissolve the employment contract.

Under the new dismissal law which comes into force on 1st July 2015, the Sub-district Court will no longer have the option to dissolve the employment contract anyway in case of the absence of an inadequate dismissal file and to assign a higher severance pay instead.

For his judgement whether or not to dissolve the employment contract the Sub-district Court will be subject to strict rules (like now applies to the UWV) and there will be a standard severance pay from which the Sub-district Judge may only deviate in -extremely?- exceptional cases. It is envisaged that employers will have to experience that -more and more- the contract will not be dissolved when the malfunction can not correctly be substantiated by means of a dismissal file. Subsequently, the employment contract can only be terminated with the employee’s consent, who may ask for a high price for it in return. Therefore, employers are well advised to structurally ensure to have and document performance appraisal interviews.

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