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For some time now, the WWZ (Employment and Social Security Act) has been applicable law, but various parts are still unclear in their application. For example, in a procedure leading to the termination of an employment contract because of – say – dysfunctioning, what evidence should an employer submit? The law at any rate says that i) the employer has to show that the employee was informed beforehand of his dysfunctioning in a timely manner, ii) the employer should have given the employee ample time to improve his functioning and iii) the dysfunctioning should not have been the result of the inadequate provision on the part of the employer of training or poor working conditions.

Next, however, comes the question whether all the employer needs to do is to make a reasonable case for this dysfunctioning or that hard evidence has to be produced in order to be able to terminate the employment contract. Opinions differ. The Courts of Den Bosch and Arnhem-Leeuwarden have ruled that all that has to be made plausible is the employee´s dysfunctioning. The Courts point to the legislator´s view when drawing up the WWZ, namely that the criteria for this particular termination ground are derived from the (former) Decision to Dismiss (Ontslagbesluit) and the Policy Regulations concerning Dismissal UWV (Beleidsregels Ontslagtaak UWV) on the basis of which hard evidence is not required. In the case of a dissolution request on the basis of a troubled employment relationship, the Arnhem-Leeuwarden Court has also ruled that the (old) Policy Regulations UWV are leading, and that the employer at any rate has to show the plausibility of the troubled relationship. This once again goes less far than producing hard evidence of a troubled relationship.

In another dysfunctioning case, the Alkmaar Magistrate took a different line, however. The magistrate was of the opinion that to establish the certainty of the facts on dysfunctioning, hard evidence was indeed necessary. The magistrate concurs with the civil rules of evidence and refuses to agree with the Policy Regulations on Dismissal UWV, which have a more administrative (and different) character. So, how evidence is viewed thus differs depending on the magistrate and, unfortunately, this does not make it any easier for the employer.

Based on the legal rulings, some general guidelines can still be given:

• be specific and timely inform the points – made objectifiable – on which the employee falls short
• record in writing as many details as possible
• clarify the consequences should improvements remain absent, such as e.g. the termination of the employment relationship
• an improvement plan cannot be the sole responsibility of the employee; the (final) responsibility rests with the employer;
• the quality of the improvement path is more important than its duration (a long period of employment does not in itself mean a lengthy improvement path);
• make plausible that placement within a reasonable period, with or without additional training, in another suitable position, is not possible. Investigating this placement has to extend to all entities of a group, possibly even when those entities or sections are abroad. A suitable position can also mean a position in another job scale.