Termination for poor performance

Chapters of the article

• Who determines what results are okay?
• Bad results need to be blamed first
• What if I no longer meet the job requirements?

However, such dismissal must always be done correctly, as we know from our experience that carelessness on the part of the employer when dismissing employees can boomerang back on the employer and can also be very costly.

As we have stated on our blog, the employee has it much easier than the employer when it comes to dismissal. They don’t have to justify their resignation in any way. On the contrary, the employer must always give a clear reason. Especially if the termination is for some misconduct on the part of the employee. The objective reasons must be written down and communicated to the employee in great detail and unmistakably, otherwise the employee could quite easily defend the dismissal in court.

Who determines what results are okay?

In order for an employer to be able to reproach an employee for unsatisfactory performance, let alone terminate his employment for that reason, the cause must not be the employer itself. For example, in a situation where the employer failed to supply the necessary machinery, failed to train the employee or objectively determined the task to be impossible.

TheSupreme Court also concluded some time ago that the way in which the employer itself subjectively assesses the employee’s performance is not determinative of the court’s decision. It may well happen that the competent court will take a different view than the employer, that it will consider other circumstances (including those which the employer failed or refused to consider) and will find in favour of the employee that the unsatisfactory performance was not due to the employee and that there is no reason for termination. The employee’s incapacity must be repeated, not just exceptional.

In general, however, there may be unsatisfactory results of various types. Whether it is the employee’s failure to meet predetermined standards (translating one text per day) or rather a vaguely defined ability to manage subordinates, resulting in unsatisfactory results for the whole team.

Bad results must first be blamed

Therefore, termination of employment for unsatisfactory performance cannot be used immediately by the employer. It must first give the employee with unsatisfactory performance a chance to remedy it in writing.

It follows from the law that an essential part of this written ‘reprimand’ is the setting of a reasonable period of time within which the employee’s unsatisfactory performance must be remedied. Only if the employee fails to improve in the long term can the employer proceed to terminate the employment relationship.

What are the requirements for a reprimand? The letter of reprimand should contain a brief description of what the employer sees as the employee’s unsatisfactory performance and, if not entirely obvious from the nature of the work itself, how it should be remedied. A warning before termination is not mandatory, but is still appropriate.

The letter of reprimand must be delivered by hand. As we have mentioned, it does not necessarily have to contain an explicit warning that it could all end in dismissal, unlike a letter of reprimand sent by an employer to an employee when it wants to terminate his employment for persistent minor breaches of work discipline.

A time limit must also be observed. The employer must serve the notice on the employee within the last twelve months of receiving the written reprimand. Thus, there must be no more than one year between the time when the written notice is served on the employee and the time when the notice is served.

What if I no longer meet the requirements for the job?

A slightly different reason for termination is termination for failure to meet the employee’s job requirements. This is for example a situation where the employee (driver) loses his driving licence and is therefore of no use to the employer. However, there may also be other requirements, such as language skills. The prerequisites that an employee must meet in order to perform a certain type of work are usually laid down by law or other generally binding regulations or internal regulations of the employer. However, the employer must always give the employee the opportunity to complete the requirements.