Firing hospitality staff who cut corners. How does that work?

What can you do as a hospitality entrepreneur if you can't reach a solution together? The solution may be improvement in behavior or a severance package. If none of this works, there is the path to dismissal. But firing hospitality staff can't happen overnight. How does it work? And when do you have a chance of succeeding at the subdistrict court?

Different dismissal routes

Which dismissal route the hospitality employer must follow is determined by the ground for dismissal. In the case of dismissal for economic reasons or dismissal due to long-term disability, the employer must go to the UWV. If the dismissal is for personal reasons (such as malfunctioning and/or a disturbed working relationship), the employer must go to the subdistrict court.

In almost all cases where the employment contract is terminated at the initiative of the employer, a termination payment (transition compensation) must be paid.

Dismissal of hospitality staff for dysfunction

Termination of the employment contract of the employee who does not perform adequately, if the employee is not willing to agree to his dismissal, can be done through the subdistrict court.

The employer must make a plausible case that:

• he has informed the employee in a timely manner that he or she is not performing adequately;
• the employee was given adequate opportunity to improve his performance;
• the employee's deficient performance is not the result of the employer's inadequate care of working conditions;
• the poor performance is not related to lack of training;
• reassignment (possibly after training) to another position is not possible.

This additional requirement that oversees training and reemployment is relatively new. Employers should take it into account. The judge tests whether all requirements have been met. If this is not the case, the judge cannot in principle dissolve the employment contract. The situation in which the judge dissolves the employment contract of the hotel and catering employee despite a defective dossier of the employer and 'compensates' for this defect by awarding a higher compensation to the employee, hardly occurs anymore. After all, even the subdistrict court is bound by the statutory transitional compensation, which cannot be corrected depending on the situation.

Dismissal for disturbed employment relationship or breach of trust

Termination of the employment contract of the employee with whom the employment relationship has become disturbed can also be done through the subdistrict court or in consultation with the employee. If the employee does not agree to a settlement, the employer must prove the following:

• it must be plausible that a serious and lasting relationship has been disrupted;
• restoration of the relationship, whether through intra-company transfer or otherwise, should no longer be considered possible;
• the employer must show that, for example, discussions were held with the aim of improving the mutual relationship;
• the judge considers whether, for example, mediation (independent conflict mediation) has been used to reach a solution;
• dismissal must be the only remaining option.

Again, the basis is that the employer will be presented with the bill if he instigates dismissal. As with the aforementioned ground for dismissal (dysfunction), this only becomes different if the employee has behaved in a seriously culpable manner.

When is an employee entitled to transition pay?

As of July 1, 2015, the well-known subdistrict court formula (ABC formula) has disappeared. In its place is the transition compensation. In principle, an employee who has been employed for two years or more is always entitled to transition compensation when the employment contract is terminated at the initiative of the employer.

The chosen ground for dismissal is irrelevant. Therefore, even in the event of dismissal for dysfunction, the employee is entitled to a transition allowance. Years of service accumulated before the age of 18 are not included in the calculation of the transitional compensation. For employees aged 50 years and older, there is also a temporary different transitional arrangement.

A 44-year-old employee with 14 years and 9 months of service earning 3,000.00 per month received a termination payment of: (2.5 + 10) x 3,000.00 x 1 = 37,500.00 gross based on the subdistrict court formula.

The transition compensation is much lower. Indeed, during the first ten years of service, this employee accrues 1/6 of the gross monthly salary per six-month period (20 six-month periods x 3,000.00 x 1/6 = 10,000.00 gross).

Conclusion and advice hospitality staff firing

It has become slightly cheaper to fire an employee who is underperforming or whom you no longer trust. The requirements have become stricter, though, because the judge can no longer fix a flawed record by awarding higher severance pay.

So it is even more important than before that you invest in your staff through training and mentoring and work on building a file. If you don't, the judge will send you back to the negotiating table.