Step-by-step plan for proper file building on dysfunctional hospitality staff

Question 1: Does the employee not or insufficiently meet the job requirements and/or is the employee unfit for the job because of his or her behavior/attitude?

Yes - continue to question 2 with the following explanation: 'When an employee dysfunctions, this constitutes reasonable grounds for termination of the employment contract. Dysfunction occurs when an employee does not or insufficiently meet the job requirements and/or the employee is unfit for the job in question because of his or her behavior/attitude. It may be that the employee is not to blame for the dysfunction, but that he or she simply does not meet the job requirements. As an employer, however, you should be able to make the nature of the dysfunction sufficiently concrete.

No - end tool with the following explanation: 'Because the employee sufficiently meets the job requirements and the employee is also not unsuitable for the job because of his or her behavior/attitude, in principle there is no question of dysfunction. Therefore, it will not be possible to have the subdistrict court dissolve the employment contract on the grounds of dysfunction. However, there may be other grounds for dismissal on the basis of which the employment contract can be dissolved by the subdistrict court.'

Question 2: Is the dysfunction due (in part) to the employee's illness or infirmity?

Yes - continue to question 3 with the following explanation: 'The dysfunction may not be related to illness or infirmity of the employee. If the dysfunction is due to illness or infirmity of the employee, it will therefore not be possible to have the employment contract dissolved by the subdistrict court on the grounds of dysfunction. In that case, there may be other grounds for dismissal on the basis of which the employment contract can be dissolved by the subdistrict court. For example, dismissal due to long-term disability or frequent absenteeism due to illness.

No - end tool with the following explanation: 'The dysfunction must not be related to illness or defects of the employee. If the dysfunction is due to illness or defects of the employee, it will therefore not be possible to have the employment contract dissolved by the subdistrict court on the grounds of dysfunction.'

Question 3: Has the employee been held accountable for his or her performance?

Yes - on to question 4 with the following clarification: 'If you as an employer find that your employee is not performing his or her duties properly, you will indeed have to first call that employee to account, as you have already done. It is important to clearly identify what the employee is not doing well in performing his or her duties.'

No - end of tool with the following explanation: 'If you as an employer find that your employee is not performing his or her duties properly, you will first need to hold that employee accountable. It is important to clearly indicate what the employee is not doing well in performing his or her duties. At the moment, therefore, it is not - yet - possible to have the employment contract dissolved by the subdistrict court on the grounds of dysfunction.

Question 4: Has the employee been indicated ways to improve performance and have they been offered tools to do so?

Yes - continue to question 5 with the following explanation: 'If you as an employer indicate what the employee in question is not doing well, you should also indicate how the employee can improve his or her functioning. In doing so, the employee should be given tools so that he or she can bring his or her functioning up to the desired level. This is what is called the "improvement process. An active role by the employer is necessary; if necessary, the employer must offer support in the form of education, coaching, training, etc. Simply establishing that an employee is functioning below par is not enough.

No - end tool with the following explanation: 'When you as an employer indicate what the employee in question is not doing well, you should also indicate how the employee can improve his or her functioning. In doing so, the employee will have to be given tools so that he or she can bring the functioning to the desired level. This is what is called the "improvement process. An active role by the employer is necessary; if necessary, the employer must offer support in the form of education, coaching, training, etc. Simply establishing that an employee is performing below par is not enough. At the moment it is therefore not - yet - possible to have the employment contract dissolved by the subdistrict court on the grounds of dysfunctioning.

Question 5: Is the employee aware of the (labor law) consequences if his or her performance is not improved?

Yes - continue to question 6 with the following explanation: 'The employee should be aware that if he or she does not improve performance, there may be consequences under employment law, including termination of the employment contract. As an employer, you will have to indicate this clearly when starting the improvement process.'

No - end tool with the following explanation: 'The employee should be aware that if he or she does not improve the performance, there may be consequences under employment law, including termination of the employment contract. As an employer, you will have to indicate this clearly when starting the improvement process. There will therefore be a number of steps to take before the employee's employment contract can be dissolved by the subdistrict court on the grounds of dysfunction.

Question 6: Was the improvement process carefully monitored, was there interim evaluation during the improvement process, and was everything documented in writing?

Yes - go on to question 7 with the following explanation: 'When a process of improvement has been completed, recorded in writing and it has become clear that the employee has not improved his or her performance, in most cases it will be possible to prove dysfunction. Incidentally, the dysfunction may not be due to insufficient care for the employee's working conditions or training. In that case, the dysfunction is the employer's responsibility and these conditions will have to be improved.'

No - end tool with the following explanation: 'As an employer, you must follow up the improvement process carefully and there will have to be an interim evaluation. As an employer, you must have had sufficient consultation with the employee to bring about the improvement. The (entire) improvement process must be recorded in writing, so that at a later stage it can be shown that the employee has had every opportunity to improve his or her performance, but no improvement has taken place. Therefore, a number of steps will still need to be taken before the employee's employment contract can be dissolved on the grounds of dysfunction by the subdistrict court.

Question 7: Is it demonstrably impossible to redeploy the employee to a suitable position within (the group of) employer(s) within a reasonable period of time?

Yes - end tool with the following explanation: 'The last step is that you as an employer will have to examine (demonstrably) whether it is possible to redeploy the employee to a suitable position within (the group of) employer(s) within a reasonable period of time. Only when re-employment is demonstrably not possible, is dismissal on the grounds of dysfunction possible. You have already filled in that it is demonstrably impossible to redeploy the employee in question to a suitable position within (the group of) employer(s) within a reasonable period of time. Therefore, the answers you have filled in indicate that a dismissal on the grounds of dysfunction could be possible.

No - end tool with the following explanation: 'The next step is that you as an employer will still have to investigate (demonstrably) whether it is possible to redeploy the employee to a suitable position within (the group of) employer(s) within a reasonable period of time. A suitable position is a position - for which a vacancy exists - that matches the employee's education, experience and abilities. The reasonable period is the length of the statutory notice period that applies to you as an employer in the event of lawful termination of the employment contract. Only when reassignment is demonstrably not a possibility is dismissal on the grounds of dysfunction possible.

In conclusion

The tool is intended to help business owners build a proper file when an employee is dysfunctional. In most cases, however, customization is required. If you have questions or want to spar about something, feel free to pick up the phone and contact one of the attorneys of our Labor Law section.'