Being dismissed for poor performance can be a real shock, especially if you didn't see it coming. But did you know that you have rights as an employee and that employers must meet strict requirements? In this blog post, we explain exactly what poor performance entails, which improvement programs are mandatory, and how you can defend yourself.
What is meant by dysfunction?
Poor performance means an employee doesn't meet the employer's reasonable requirements and expectations for the position. This could include, for example, inadequate performance, communication problems, or failure to meet set goals. It's important that poor performance is determined objectively. This means the employer must have facts and evidence, such as performance reviews and performance review reports.
How is dysfunction diagnosed?
An employer can't simply say someone is underperforming. They must:
- Provide concrete examples of substandard performance.
- Evidence that the employee has been informed of these deficiencies.
- Use objective criteria, such as defined targets or tasks.
In short, your employer must substantiate the poor performance with hard facts.
Which improvement programs should your employer offer?
Before an employer dismisses an employee due to poor performance, they are required to offer an improvement program. The goal is to give you the opportunity to improve your performance. Without such a program, a dismissal is usually considered invalid.
An improvement process consists of:
- Clear agreements: What needs to be improved and within what timeframe?
- Support: This can vary from extra coaching to training.
- Regular evaluations: There should be times to discuss your progress.
- Documentation: the employer must record all steps.
If your employer has not offered an improvement program or is not implementing it properly, you can use this as an argument against dismissal.
How can you defend yourself against dismissal due to poor performance?
If you are confronted with an intended dismissal, you can challenge this in several ways.
1. Check the procedure
An employer must comply with the rules in your employment contract, collective bargaining agreement, and the law. For example, they must:
- Evidence that dysfunction is actually an issue.
- Demonstrate that opportunities for improvement have been provided and that a reasonable time has been given for this.
- Investigate whether an alternative position is available within the company.
2. Request access to your file
Ask your employer to inspect the personnel file in which your performance is discussed. This allows you to verify whether any allegations are justified. As an employee, you have the right to know what information is contained in your personnel file. However, this does not automatically mean that you, as an employee, have a right to all information contained in the file. Personal work notes and notes intended solely for internal consultation or deliberation are not covered by the right of access.
3. Seek legal assistance
If you disagree with the dismissal, you can consider legal action. The subdistrict court judge will rigorously assess whether the dismissal is fair and whether the employer has met all requirements.
4. Consider a settlement agreement
Don't want to fight the dismissal? Then negotiate a good severance package. This could include a higher transition payment or other benefits, such as time off from work. Get legal assistance in this matter.
Read also Settlement agreement in case of dismissal: What you need to know.
De Unie is ready for you
When you are fired, it is crucial to know your rights. De Unie is happy to help you with tailored legal support and advice. Our specialists are ready to guide you through discussions, improvement processes, or potential legal action.
Want to know more or need immediate help? Join De Unie and call our Service Center on 0345 851 963. Together we are stronger!
