An employer may attempt to dismiss an employee due to poor performance. This means that the employee allegedly does not adequately fulfil their function. Dismissal for this reason occurs frequently, but from a legal perspective it is not straightforward: the employer must follow strict rules and cannot simply dismiss an employee.
In this article, we explain what poor performance entails, how the procedure works and how you can defend yourself against it.
What Is Poor Performance?
Poor performance means that the employee structurally performs insufficiently in their function. For example:
The work is not carried out satisfactorily.
There are structural errors or insufficient results.
The employee does not collaborate well or communicates poorly.
An incidental error or a one-time mistake does not constitute poor performance.
When Is Dismissal Due to Poor Performance Permitted?
The law sets strict conditions. An employer can only request dismissal due to poor performance if:
It is clear what is not going well.
The employee has been informed of this in a timely manner.
The employee has been given a genuine improvement plan.
Reassignment to a different position is not possible.
Without an improvement plan or clear feedback, dismissal due to poor performance usually cannot succeed.
The Improvement Plan
An employer must give the employee the opportunity to improve. This takes place through an improvement plan, which may consist of:
Clear agreements regarding performance.
Additional guidance or coaching.
Education or training.
Regular evaluations and written reports.
An improvement plan usually lasts at least several months.
Procedure for Dismissal Due to Poor Performance
The employer can ask the subdistrict court to dissolve the employment contract.
The court assesses whether there is indeed poor performance and whether an improvement plan was followed.
If the employer cannot demonstrate this, the request is often rejected.
Severance Pay in Case of Poor Performance
In case of dismissal due to poor performance, you are entitled to the transition payment (transitievergoeding).
If the employer acted seriously culpably (for example, by not offering an improvement plan), you may additionally be entitled to a fair compensation payment (billijke vergoeding).
Practical Examples
Example 1: An employee received no clear feedback but was nonetheless dismissed for poor performance. The court rejected the dismissal request.
Example 2: An employee was given an improvement plan with coaching and courses but showed no improvement. The court dissolved the contract.
Example 3: An employee was given no opportunity to improve at all. The court awarded an additional fair compensation payment on top of the transition payment.
Checklist for Dismissal Due to Poor Performance
Did you receive clear feedback on your performance?
Did you receive an improvement plan with concrete agreements?
Did the improvement plan last long enough (usually several months)?
Was reassignment to a different position considered?
Have your situation legally checked before you agree to dismissal.
Common Mistakes
Employers initiate dismissal without an improvement plan.
Employees sign a settlement agreement too quickly.
No file is maintained of appraisals, reports and meetings.
Assuming that poor performance automatically means dismissal.
Frequently Asked Questions (FAQ)
1. Can I be dismissed for poor performance without an improvement plan?
No, an improvement plan is mandatory.
2. How long does an improvement plan last?
Usually several months, depending on the position and circumstances.
3. Do I receive severance pay in case of dismissal for poor performance?
Yes, at least the transition payment.
4. Can I challenge a dismissal for poor performance?
Yes, you can put forward a defence before the subdistrict court.
5. What if my employer pressures me into signing a settlement agreement?
Always have it legally reviewed; you can often negotiate better terms.
Why Arslan Advocaten?
Specialised in employment law and dismissal cases
We verify whether poor performance has been rightfully invoked
We guide you through improvement plans and negotiations
We regularly achieve higher severance payments or reinstatement
Conclusion
Dismissal due to poor performance is only possible if the employer strictly adheres to the rules. Without an improvement plan and clear feedback, dismissal is often invalid. As an employee, you therefore have a strong position and a right to protection and compensation.