Is the trepidation of employers about the new Dutch dismissal law an indication of ill-equipped managers?

The Volkskrant reported on 26 January 2016, that Dutch employers are “afraid” and nervous about the new Dutch Labour Law amendments relating to dismissal.

The newspaper reports that judges in dismissal cases, are now more likely to find in the favour of the dismissed employee.

According to the Volkskrant it was before 1 July 2015 exceptional that a dismissal was not confirmed by a judge.

According to Petra Charbon of the association of Labour Law advocates (Vereniging Arbeidsrecht Advocaten Nederland) employers must now fulfill new requirements of the amended Dutch Labour legislation. The employment history of the employee must be considered and a detailed employee casefile must support the dismissal.

According to Charbon is the "building of a casefile" against the employee something that employers must get used to.

The employer organisation AWVN also reports that their courses on “building a casefile” is fully booked months ahead.  This gives an indication that the perception of Dutch management relating to performance management and conduct of employees is skew.

This trend is also seen with the reaction of Dutch employers to the amendment of the procedures relating to independent contractors. Dutch employers are accustomed to procedures where a third party e.g. courts or the tax office makes decisions relation to a Labour Law issue.

The Dutch Government decided however that in a modern Labour Law dispensation certain responsibilities must go back to the employer. The reason behind this policy is that an active Labour Law strategy will make labour more flexible and save time and money.

The response of Dutch labour lawyers and even human resource experts is a source of concern. One and all advise that employers must focus on casefile building and they even present courses on how to build a casefile to ensure that a dismissal will be confirmed in a court.

It is not surprising that Dutch employers are terrified by possible courts proceedings if the building of a casefile is their response to misconduct and poor performance.

Case building is reactive, it must be a consequence of performance management not a goal in itself.

It is not the duty of a manager/supervisor to build a case against an employee, rather to take remedial steps in order to bring the employee back to the desired level of performance. In cases of serious misconduct it is necessary to investigate the alledged misconduct in a thorough and impartial manner.

Courts must not be convinced on how bad the employee is, but rather that the employer has done every possible to rehabilitate the employee. Serious misconduct may lead to summary dismissal where the employer indicates that the employment relationship cannot be continued and that a fair and consistent process was followed. Click here for more information about a resent court case relating summary dismissal of an employee.

Employers with sound Human Resource Management practices in place will be prepared to address misconduct and poor working performance. Misconduct and poor working performance will be addressed pro-actively and where remedial steps are not successful everything will be in place to defend the dismissal in court.

The way that performance appraisal interviews are currently done is also not the answer to ensure that employers is in line with the challenges of the amended Dutch Labour Law. There is even ongoing discussions if the whole concept of performance appraisal is outdated and must be abandoned. Managers frequently see performance appraisal only as a paper exercise, the forms are too long and complicated and there are frequently no eye contact because the manager is completing the form. The appraisal is afterwards filed away, without concrete steps taken.

It is recommend that the periodic performance procedure system must be replaced with an ongoing performance management system. The emphasis must be on coaching throughout, and the tone must be positive.

Each employee has a series of near-term goals, or “priorities.” Managers are expected to have frequent discussions, called “touchpoints,” on progress toward those goals and note what was discussed, committed to, and resolved.

Employees can give or request feedback at any point through a feature called “insights,” which isn’t limited to their immediate manager, or even their division.

Performance Coaching is a series of conversations that are designed and conducted to enhance someone's wellbeing or performance.

Performance coaching can be described as a series of guided conversations that enable the “coachee” to discover and implement personal solutions to challenging issues or areas of performance. These solutions, because they are intrinsic to the “coachee,” are more likely to succeed and endure than solutions imposed externally.

The footwork of the manager must be in place even before an issue can occur. The ideal is that unacceptable employee conduct must be prevented, and where it happens the manager must be equipped to handle it.