Working in the Netherlands

By Johan Botes, Partner and head of the employment practice at global law firm, Baker & McKenzie, Johannesburg

Employers are often confronted with the dilemma of deciphering an employee’s failure to perform in accordance with expectation or instructions. Is the employee incapable of performing the tasks or not willing to do so? The answer to this question is critical as it will determine the process to be used to remedy the problem.

Employment law draws a distinction between an employee’s lack of ability or skills, on the one hand, or lack of care, diligence or willingness to perform in accordance with expectation. No employer is expected to tolerate an employee who is unable to do the basic job for which he or she was hired. However, selecting the appropriate road leading to the fair termination of employment is important.

Poor performance as a form of incapacity
Employees who are genuinely unable to perform their appointed tasks are treated differently in law to those employees who are able to do their work, but for other reasons don’t perform. Considering the inexact nature of recruitment processes, it is not uncommon for employers to realise that the applicant that so impressed during the interview process turned out to be all icing and no cake in the kitchen that is the modern workplace.

Our law allows such employers to go through an abridged process to terminate the services of probationary employees who cannot deliver on the promise shown during recruitment. This, paradoxically, encourages employment as employers can take comfort knowing that they will be tested against a lower standard when dismissing probationary employees for poor performance. It allows employers the latitude to take chance on a new recruit, knowing that the business need not jump though all the same hoops prior to dismissal for performance that it is required to do in the case of non-probationary (or permanent) employees.

The process preceding termination for performance is one of counselling, seeking to understand the causes for poor performance, ensuring that the employee understands the performance targets and measures, setting periods for measuring required improvement and providing reasonable assistance, where required.

Misconduct
Where incapacity suggests an inability to perform, misconduct relates to fault on the part of the employee in not adhering to rules, standard or instructions. In classical examples, the distinction is drawn between an inept employee who spends hours on end, making best effort to comply with an instruction (say to turn in a report), versus the employee who is capable of drafting the report, but then intentionally or negligently fails to do so.

On the one hand the incapable employee is not at fault for his inability to turn in the report – he lacks the skills to draft it or comprehend what is required. His situation is remedied through performance counselling but can still lead to his termination unless he remedies his performance gaps. The other employee, though, is committing misconduct in that whilst he can perform he disregards the instruction or fails to pay sufficient attention or care to ensure that it is carried out. His failure is misconduct and is remedied through disciplinary action.

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