Dismissal due to dysfunction
If your employer can demonstrate that you are not suitable for the performance of your job, you may be faced with dismissal due to poor performance. However, there are many rules that your employer will have to follow closely. For example, you must have been given the opportunity to improve your performance, and the preconditions, or the circumstances in which you have to perform your work, must be in order. In addition, your dysfunction may not be caused by illness or other aggravating private circumstances. When is a dismissal due to dysfunctional right or wrong and what can you as an employee do if you think the dismissal is unjustified?
The definition of dysfunction
When it comes to diagnosing dysfunction at work, we find ourselves in somewhat of a gray area. Because how can an employer determine that you are not doing your job properly, without a certain degree of subjectivity being involved? In the event of dismissal due to malfunctioning, your employer will therefore have to submit a very well-substantiated file. There may be justifiable dismissal for performance if you fail to meet your goals, if you fail to complete the amount of work you are required to do, or if the quality of the work delivered is of insufficient quality. Even if you are bad at dealing with customers or colleagues, this can be regarded as dysfunctional.
If your dysfunction is caused by poor working conditions (for example, the resources you need to do your job are not available), by an unfavorable financial position of the company or an economic crisis, or by objectives that are not realistic, then you should not be fired. Even if the company does not provide you with the necessary additional or retraining courses, your employer may not fire you for malfunctioning. Finally, illness or certain private circumstances should never be the reason for dismissal due to dysfunction.
The dismissal file
In the dismissal file, your employer must substantiate very specifically and extensively the reason for your dismissal. If dysfunction is given as a cause for dismissal, the employer must be able to demonstrate that you are not suitable for your position. He can only do this if the job requirements are clear, so that you as an employee know exactly what is expected of you in this position. Are the job requirements not clearly defined? Then it will be very difficult for your employer to demonstrate your dysfunction.
Your employer must also be able to demonstrate that you are provided with all the resources you need to perform your work properly. This includes a well-equipped workplace, a computer and the right software. But also, for example, the possibilities to follow courses that are necessary to keep your work knowledge and skills up to date.
Make your performance negotiable
If your employer believes that you are not suitable for your position, he cannot simply dismiss you because of poor performance. You must first be given the opportunity to improve your functioning. This means that your employer must discuss the criticism of your performance with you and then give you sufficient time to adjust your performance. This will be reflected in a good dismissal file in the form of reports of performance interviews, an improvement plan and evaluations. If this process is lacking, you will be in a strong position if you decide to challenge your dismissal through the courts.
Abuse of dismissal due to dysfunction
If a dismissal for malfunctioning comes as a bolt from the blue for you, or if only vague, unclear and debatable reasons are given for the dismissal, then it is good to realize that dismissal for malfunctioning is often abused by employers to disguise the actual reason for dismissal. For example, the employer has personal reasons for wanting to fire you, because he would rather have someone else take your place. Or, for example, you think the company is too old or too expensive. In this case, the substantiation in the dismissal file will be very scant and therefore insufficient, so that a judge will almost certainly reverse the dismissal.
Help with legal proceedings
To avoid going to court, your employer may try to get you to sign for dismissal with mutual consent through a settlement agreement. Whether it is wise to sign this agreement depends on your personal situation. The legal position of employees in the event of dismissal due to poor performance is in many cases quite strong. It is therefore possible that you are doing yourself a disservice by signing a settlement agreement. We can assess the settlement agreement for you and advise you on the best next step in your situation. Legal procedures are complex and require the right knowledge to achieve an optimal outcome. We are happy to assist you in this. Please feel free to contact us for more information.