Dismissal for non-performance -Termination underperformance


Termination for Underperformance? When is dismissal for poor performance possible? Free 1st Advice

Termination for Underperformance

In many dismissal cases, the employer wishes to terminate the employment contract because the employee is not performing well (underperforming). The employer believes that the employee does not meet the requirements set for the position (Dysfuntion).

Examples of underperformance leading to termination

There are numerous reasons why termination for underperforming may occur. Below are some examples:

  • Tasks are not being performed correctly.
  • Work is often not completed on time.
  • Employee handles customers poorly.
  • Employee is passive instead of proactive.
  • Employee makes too many mistakes.
  • Poor relationships with colleagues.
  • Employee is frequently late.
  • Sales targets are not met.
  • Employee cuts corners.
  • Employee always engages in arguments, thinking they know better.

In cases where the employer is seeking termination for underperformance, the employer can submit a request for the termination of the employment contract to the labor court. Of course, the employee can also defend against this. We can assist you excellently with this! First advice = FREE!

Dismissal for non performance Termination underperformance


Employee Defense Options for Poor Performance, Dismissal due to incompetence

If you, as an employee, are facing a termination for underperformance, you may be able to defend (or have someone defend you) on the following points:

The underperformance is not proven:

If the employer claims that you are not performing adequately, they must be able to prove it. The employer can substantiate their position with performance or evaluation reports. If these are not (sufficiently) available, the employer can try to prove underperformance with letters, notes, testimonials, and so on.
Incidentally, occasional poor performance is often not enough for termination. There must be a pattern of consistently inadequate performance for termination due to poor performance.

You were not warned:

It often happens that an employer wants to dismiss an employee "out of the blue" without prior warning. Such a dismissal is often not upheld. The labor court expects the employer to have pointed out the employee's poor performance on previous occasions. Furthermore, the employer is expected to warn the employee that termination for poor performance may follow if their work does not improve.

No 'improvement trajectory' was followed:

The employer must give the employee sufficient time to improve their performance. The employer is also expected to support the employee in this, for example, through guidance, additional training, or education. All of this is called an 'improvement trajectory.' There are no rules about how long and intensive an improvement trajectory should be, but it can be inferred from case law that the longer an employee has been in service, the longer and more intensive the improvement trajectory may be expected. For employees with a short tenure, a few weeks of improvement trajectory may suffice, while employees with more than 20 years of service may require a 3-6 month improvement trajectory.
Example of an improvement trajectory: If you are an employer and want to embark on a legally correct improvement trajectory, you can order a sample trajectory from us by clicking on: sample improvement trajectory

No consideration was given to other positions:

If you are demonstrably underperforming and an improvement trajectory has not resulted in improvement, the employer has a duty to see if there is other work within the company or the group that you could reasonably be placed in.

What to do when facing potential dismissal due to underperformance?

First and foremost, ensure that you perform your work as well as possible. If the employer still has criticisms about your performance, evaluate whether those criticisms are valid.
It may be the case that the employer has set unrealistically high expectations or demands for your performance. It is not uncommon for employers to have expectations that do not align with the job description.
If the criticism of your performance is valid, make an effort to improve and seek assistance from your employer if necessary.

If the employer's criticism is unjust, communicate this to them. It is advisable to counter the employer's criticism in writing whenever possible, so that you can demonstrate in case of a legal proceeding that you previously objected to the employer's allegations.
It is also important not to sign performance reports as "accepted" if you disagree with the criticisms. In such cases, sign them as "received only."

Labor Court Decides in Cases of Poor Performance Termination, Termination agreement

Especially in cases of termination due to underperformance, emotions can run high. However, most cases are resolved through mutual agreement, with or without the assistance of lawyers. The solution may involve adjusting the work or expectations, offering a different position, or a termination settlement, including a severance package. Regarding mutual termination agreements, ask our specialists to help you. We can negotiate an attractive dismissal scheme for you.

In cases where the employer and employee cannot resolve the issue mutually, the employer can bring the matter of underperformance termination before the labor court.

If the labor court believes that there is no (serious) underperformance or that an adequate improvement trajectory has not been followed, the requested termination will be denied. Also, if the labor court believes that the employee can be redeployed within the employer's company, the requested termination will be denied.

Severance Pay in Cases of Underperformance Termination

The labor court is not free to determine the severance pay to be awarded if the termination request is granted. The employee is entitled to the statutorily defined severance pay, which amounts to 1/3 of a month's salary for each year worked. If there is serious culpable behavior on the part of the employee, they will not be entitled to severance pay. However, the labor court can award an additional compensation to the employee if the employer has acted seriously wrongfully or negligently.

Is a higher compensation possible through negotiation?

Even if an employee is terminated for underperformance, they will almost always be entitled to the statutory severance pay. The amount of severance pay is calculated based on the length of employment.
The severance pay amounts to 1/3 of the gross monthly salary for each year worked.

Because stringent requirements are imposed on terminations for underperformance, our lawyers frequently succeed in securing higher severance pay for employees than what the law prescribes or what the employer offers. So, if you want a higher compensation, call or email us. 

You are an employer

If you are an employer, you will need to follow a precise step-by-step plan to terminate an underperforming employee. If you make mistakes during this process, the termination will not be granted. Avoid errors and order our dismissal checklist for underperformance by clicking on underperformance.

Take Immediate Action for a Higher Compensation

Is your employer trying to dismiss you, or do you want to dismiss an employee? Seek immediate assistance from our dismissal specialists. Call 0900-123-7324 or email us. The first advice is free for dismissal due to underperformance.

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