Illness, Reintegration and Inadequate Performance; Deployment of Mediation
Subdistrict Court of Dordrecht (AR_2010_0729)
Terminating an employment contract during illness on the basis
of inadequate performance is usually not easy. Frequently, this
does not only lead to discussions about the quality of the “file”,
but also about the question of whether the illness stands in the
way of a rescission by the Subdistrict Court. A recent judgment
shows how this can go wrong.
In this case the employer, a bank, applied for the rescission of
the employment contract with a 37-year-old employee, who had been
employed at that time in the position of investment specialist for
13 years. In September 2008 the employee fell ill for the first
time. Some months after his recovery, the employee fell ill once
again in September 2009 due to a depression. After one-and-a-half
month's absence, the company doctor advised that there were no
medical impediments for him (anymore) to reintegrate into the
former position. This was also what the employee wanted, but the
bank took the position that reintegration into the position of
investment specialist was not an option anymore. The bank claimed
that he had been performing inadequately already for a while and,
moreover, he had copied confidential documents. The latter had led
to a breach of trust. On these grounds the bank requested the
Subdistrict Court for the rescission of the employment contract.
The decision of the Subdistrict Court was very clear. Inadequate
performance did not appear from the file at all, rather the
opposite. Moreover, there was no improvement plan with points for
improvement and evaluation moments. This was “all the more
persuasive” since within the bank concerned “elaborated plans have
been described to get employees who are performing inadequately
back on track.” The Subdistrict Court furthermore ruled that the
facts that had to substantiate the breach of trust were
insufficiently plausible, so that a rescission on the basis of the
breach of trust brought forward was not granted either.
The Subdistrict Court furthermore concluded that the request was
particularly connected to the illness. During the hearing the bank
had also brought forward that as a consequence of the health of the
employee and his regular periods of illness, reintegration into his
original position was not an option. It was precisely this
connection to the illness that weighed heavily. The Subdistrict
Court added to this that if there is a difference of opinion about
the reintegration, the employer and employee must try to solve this
in an open discussion, if necessary with the intervention of a
company doctor or mediator, without prior conditions, before filing
an application for rescission. According to the Subdistrict Court,
the general attitude of the bank did not show any signs of due care
and it therefore ordered the bank to pay the costs of the
proceedings, which is quite unusual in rescission cases.
This judgment once again shows that applications for rescission
because of inadequate performance must be based on a sound file,
and that the courts usually also attach importance to a realistic
improvement plan. In the absence of all of this, the employer must
be able to explain very well why a rescission is necessary anyway.
Once again this underlines the importance of good and consistently
file-keeping and of actually using the internal facilities. If such
facilities exist – as in this case – but they are not or not
correctly used, this can have a potential boomerang effect.
The judgment also links up with a tendency in case law in which the
inadequate use of conflict-resolving instruments, such as a “good
talk”, whether or not under the supervision of a mediator, may have
consequences. It sometimes seems a relatively small effort, while
it offers both parties, also the employer, room to discuss their
concerns about the reintegration in confidence and to investigate
whether a solution can be found for this in consultation. Such a
solution is often found in a different working place at the own
employer or in a controlled termination of the employment agreement
in mutual consultation.