Are we gradually moving away from the mandatory improvement plan for poor performance? Employment law attorney Emilie van der Lans discusses this in the blog below.

Since the Work and Security Act (“WAB”) came into effect, the so-called i-ground has been added as a possible ground for dismissal. The i-ground is a ‘combination ground’ and makes it possible to combine multiple dismissal grounds to achieve a dismissal. In the case of dismissal on the i-ground, the court may award the employee an additional compensation on top of the transition payment of up to 50% of the transition payment.

The i-ground can provide a solution in cases where there is poor performance, but insufficient action has been taken by the employer to achieve improvement. This is evident from a very recent ruling by the Court of Appeal of Arnhem-Leeuwarden (ECLI:NL:GHARL:2021:2957).

What Happened?

The employee in this case is a cook at a care center. He has been employed since 2008 and until 2017 there was no criticism of his performance. In 2017, the cook is transferred to a location with an open kitchen. This changes his work and brings him into more contact with residents/clients. From that moment on, the cook’s performance deteriorates. He is quick to anger and behaves angrily and sometimes even aggressively toward colleagues and residents. The cook is addressed by the employer about his behavior and the employer indicates that performance must improve. However, the employer does not really follow through and does not start an improvement plan. At the beginning of 2020, three complaints about the cook are received in quick succession. In one case, the cook was so angry that he threw food on the plate, nearly hitting a colleague. After these complaints, the employer has had enough. The cook is suspended and dissolution proceedings are initiated.

The Court of Appeal rules, on appeal, that this case essentially involves poor performance, but that the cook has not been given sufficient opportunity to improve his performance. The Court of Appeal therefore does not dissolve the contract on the ground of poor performance, as an improvement plan is required for dissolution on that ground. The Court of Appeal also does not find the incidents, including the incident with the food, to be seriously culpable. Finally, the Court of Appeal sees no reason to dissolve the employment contract due to a disturbed employment relationship, because the employer has done too little to neutralize the relationships. Instead, the Court of Appeal combines all these elements and still dissolves the contract, but based on the ‘i-ground’. The Court of Appeal justifies this by pointing to the various grounds together and the fact that the cook himself does not seem to recognize that something needs to change in his behavior. After dismissal, the cook is entitled to the transition payment and an additional compensation amounting to 25% of the transition payment.

Improvement Plan No Longer Required?

This ruling shows that dismissal for poor performance can occur even without an improvement plan. However, there must be additional circumstances. In this case, it is mentioned as a circumstance that the poor performance had a negative influence on the work atmosphere. The cook’s behavior led to conflicts with colleagues and thus to tensions in the workplace. But how exceptional is this? When someone performs poorly, this will in many cases affect the work atmosphere and cooperation with colleagues. This applies at least to poor performance that lies in an employee’s attitude or communication.

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