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A dysfunctional employee is one of the toughest HR challenges. Dismissal on the grounds of poor performance (ground d, Art. 7:669 paragraph 3 sub d of the Dutch Civil Code) requires solid documentation: feedback, performance reviews, written warnings, an improvement plan with SMART goals, and a reassignment investigation. Without this, the subdistrict court judge almost always rejects a request for dismissal. The process typically takes 6–12 months from the initial interview to dismissal — invest in the file or accept continued employment; there is no middle ground.
The short answer
- Building a case file is essential: without a file, there is no successful d-ground.
- Improvement process: SMART goals, realistic timeline, support.
- Redeployment investigation: offer another position within the organization if possible.
- Lead time: 6–12 months for solid d-soil.
- Alternative: settlement agreement — fastest and often cheapest route.
The d-ground: what does the law say?
Article 7:669 paragraph 3 sub d of the Dutch Civil Code: dismissal is possible due to unsuitability for the agreed work, other than as a result of illness or disability. Conditions for award by the subdistrict court judge:
- The employee is demonstrably performing below reasonable expectations.
- The employee was informed of this in a timely manner and in writing.
- A reasonable opportunity for improvement has been offered.
- Any support (training, coaching) has been offered.
- Reassignment to another suitable position has been investigated.
The subdistrict court judge conducts a thorough review — a file of two conversations on a single A4 page is not sufficient.
File building — what belongs in it?
Per phase:
- Performance reviews: annually or more frequently, documented in writing.
- Performance reviews: interim evaluations with concrete points.
- Official warnings for inappropriate behavior — see official warning.
- Improvement process: written plan with goals, timeframe, and support.
- Interim evaluations: document progress.
- Final assessment: conclusion as to whether the employee meets the requirements.
Confirm everything in writing and have the employee sign for receipt. Without written evidence, the subdistrict court judge has little to decide on.
The improvement process (PIP — Performance Improvement Plan)
A good improvement process:
- SMART goals: specific, measurable, acceptable, realistic, time-bound.
- Concrete timeline: often 3–6 months.
- Support: training, coaching, mentor, tools.
- Regular checkpoints: interim evaluation at least monthly.
- Clear consequences: what happens if you pass or fail.
A Personal Impact Assessment (PIP) that is too short, too unclear, or lacks support will be rejected. Minimum of 3 months, with measurable goals and demonstrable support.
Relocation study
For ground d, the employer must investigate whether the employee can be reassigned to another suitable position within the organization. Document:
- Which positions were vacant or expected to become vacant?
- Does the employee have the qualifications?
- Was the employee willing to fill the other position?
- Why did relocation prove unreasonable?
Without a documented relocation study, the d-ground fails.
Settlement agreement as an alternative
Many employers opt for a VSO halfway through or after the improvement process. Benefits:
- Faster than the subdistrict court (2–6 weeks versus 3–6 months).
- No risk of rejection.
- Less conflictual.
- Predictable costs.
Disadvantages: generally higher termination payment than transition payment. But often cheaper than a lost lawsuit. See settlement agreement.
Honest recommendation
For grounds of dismissal without a solid case file: no chance in court. Invest in performance reviews, warnings, a Performance Improvement Plan — or accept that dismissal is virtually impossible. In most situations, a settlement agreement following a fair attempt at improvement is more pragmatic than court proceedings. Engage an employment lawyer from the start.
For more routes: dismiss employee.
Frequently Asked Questions
Start building the case file: performance reviews, official warnings, a performance improvement plan (PIP) with SMART goals, and support. Only after a fair period of improvement can grounds for dismissal succeed before the sub-district court. Faster alternative: settlement agreement.
Dismissal due to unsuitability for the agreed work (Art. 7:669 paragraph 3 sub d of the Dutch Civil Code). Not applicable in cases of illness or disability. Requires a solid file: demonstrable dysfunction, written warnings, improvement plan, support, and reassignment investigation.
A minimum of 3 months, often 6 months. A shorter period is considered unreasonable by the subdistrict court judge. With measurable SMART goals, support, and regular interim evaluations.
The employer investigates whether the underperforming employee can be placed in another suitable position within the organization. Document: which vacancies, whether the employee qualifies, whether he was willing, and why this proved unreasonable. Indispensable for ground d.
Yes, but without a file, it is hopeless. The subdistrict court judge carefully assesses whether the employer has the file in order and has acted reasonably. Insufficient file = dismissal of wage claim by employee.
At the sub-district court, legal costs range from €5,000 to €20,000 plus court fees and potential transition payment. At a settlement agreement, it is €1,500 to €5,000 plus termination compensation. A settlement agreement is often more pragmatic and faster, with predictable total costs.
Document the refusal in writing. It can serve as an additional argument for ground e (culpable conduct) alongside ground d. In the event of a complete refusal, sometimes ground i (cumulation) before the sub-district court.
