Dismissal due to poor performance

According to the legal regulations surrounding summary dismissal, it is not mandatory to hear the employee’s side of the story regarding their conduct before an employer proceeds with summary dismissal.

Nevertheless, in practice, it is highly advisable for an employer to ask the employee about their conduct before a decision to dismiss them is made.

Hearing the employee can prevent a number of problems and possible misunderstandings. First of all, it helps the employer to get a clear picture of exactly what happened. Does the employee acknowledge the conduct that the employer has observed? If not, what explanation does the employee have? Does the employee deny the conduct or does he or she have a very different view of the seriousness of the conduct?

In any case, it is important that the employee is given the opportunity to give their view of the situation. The information provided by the employee can then be taken into account in the final decision on dismissal.

It goes without saying that the employee has the right to know exactly why he has been summarily dismissed. The employer therefore has a duty to inform the employee of this at the same time or as soon as possible after the summary dismissal.

The law requires the employer to inform the employee ‘without delay’ of the reason(s) for dismissal.

If there is a combination of behaviours that give the employer grounds for summary dismissal, the employer would be wise to state in the letter of dismissal that the dismissal is based on a combination of behaviours, but also that each individual behaviour constitutes sufficient grounds for summary dismissal.

It is not an unnecessary luxury to leave the drafting of the letter confirming/giving immediate dismissal to an employment law specialist. Unclear wording can quickly result in a judge overturning the immediate dismissal at the employee’s request.

The UWV will also check whether the jobs in question are being made redundant on a permanent basis. In other words, if there is a small dip in turnover that is likely to recover within a few months, this dip will not be sufficient to obtain permission for dismissal. According to the UWV, a situation can only be considered structural if it is clear that the jobs will be lost for a future period of at least 26 weeks.

In addition to marginally assessing the economic reason, the UWV looks at two other important factors. Namely, whether the employer has nominated the right employees for dismissal (in accordance with the reflection principle) and whether the employer has made sufficient efforts to redeploy the employees. In this regard, more can be expected from a large employer in terms of redeployment than from a small company.

An employer would also be wise to avoid specific criminal law terms as much as possible when formulating the reason(s) for dismissal. The criminal law term “embezzlement” (Section 321 of the Criminal Code), for example, presupposes that the person concerned acted intentionally. An employer who uses this terminology will have to prove that the employee acted intentionally in the manner in which he or she acted.