The employee has been employed with the employer since 1 March 2007. The employer requests the court to terminate the employment agreement of the employee, because of poor performance. The employer argues that the employee fails at the inter-human level as well as regards to the substance. Although many meetings took place, the employee did not improve his performance. Furthermore, the employer argues, that the employee failed to draft an improvement plan, the mediation procedure failed and the transfer to a different department was not successful.
According to the Court, the employer mainly described the process in its request, but failed to describe what the poor performance of the employee is based on. The employer pointed out to the employee that an improvement plan should be drafted, but the initiative to draft the plan was completely placed upon as the responsibility of the employee.
An employer may be expected to guide its employee through the process of an improvement plan and formulate clear, concrete and measurable goals. Where possible, the employer should offer (external) coaching and assistance (e.g. training). The employer emphasized too much and for too long that the initiative should be taken by the employee, whilst the employer knew that the employee did not recognize the employer’s criticism. Moreover, the Court ruled that there was also no ground to terminate the employment agreement, because of an impaired working relationship, because the employer caused and worsened the impairment. The Court rejected the employer’s claim to terminate the employment agreement.