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Unilateral change of position in the event of inadequate performance

Unilateral change of position in the event of inadequate performance

The question regularly arises as to whether the employer is entitled to unilaterally change the position of an employee if the employee performs inadequately in his current position. Recently this question also came up for discussion in a case that took place before Enschede sub-district court last 16 June.

The facts

The relevant employee had been in the employ of the employer since 1 January 2000 as warehouse manager and was working at an office in Enschede. Since the middle of 2007, the employee was being repeatedly called to account for his performance and was receiving the necessary support to improve it. Nevertheless, his performance did not improve. In 2009 he received a final warning to raise his performance to an acceptable level, but this warning produced no results. His performance remained sub-par and after another incident occurred on 11 February 2011, the employer decided to proceed with transferring the employee toZwolleand to change his job description from warehouse manager to warehouse employee. The employee did not agree with these measures and initiated proceedings for his reinstatement in his old position as warehouse manager in Enschede.

The sub-district court’s judgment

Firstly, the sub-district court asked itself whether the employee is obliged under his employment contract to perform the job of warehouse employee inZwolle. This question was answered in the negative. Then the sub-district court reviewed whether the employer was entitled to unilaterally change the employee’s employment contract in the sense that his position would be changed. Since the employment contract did not contain any unilateral changes clause, this question had to be answered pursuant to Section 611 of Book 7 of the Dutch Civil Code (being a good employee) and to the criteria that the Dutch Supreme Court had developed in this connection in the Stoof/Mammoet ruling. There, the Supreme Court stipulated that an employee is obliged on the basis of being a good employee to accept a proposal by his employer to a change in his employment conditions (read: position) if three conditions are met:

1. A change of conditions must exist that compel the employer to change the employment contract.
2. In light of all circumstances of the case, the proposed change must be reasonable.
3. Acceptance of the proposal must be demanded of the employee in reasonableness.

The sub-district court judged that the employer did not hastily decide to change the employee’s position. Since 2007 the employer had attempted in vain to improve the employee’s performance level. Consequently, the sub-district court was of the opinion that the employee’s inadequate performance gave the employer sufficient cause to change his position (condition 1). Then the sub-district court arrived at the weighing of interests (conditions 2 and 3). In the opinion of the sub-district court, the employer’s business interest in changing the employee’s position prevails over the employee’s interest in retaining his position. In doing so, the sub-district court attached importance to the fact that the difference in commuting distance for the employee was nil and that he retained his salary. The sub-district court then arrived at the conclusion that the employer is entitled to unilaterally change the position of the employee.

Conclusion

This judgment is in line with previous case law. Case law shows that the sub-district court arrives at the weighing of interests only if the employer can make it plausible that the employee is performing inadequately, that he has repeatedly called the employee to account for his inadequate performance, that he has granted the employee sufficient opportunity to improve it and in the process has offered him sufficient support. In the process, the requirements for a justified change in position due to inadequate performance reveal strong similarities with the requirements for a successful dismissal procedure. In the context of the weighing of interests, all circumstances of the case play a role. The extent of the drastic nature of the proposal, including the nature of the duties to be fulfilled, the place where the duties must be fulfilled and the salary that the employee will receive, features prominently in this process. In the event of a possible drop in salary, the arrangement of a phase-out scheme will in any case be demanded.

If an employee refuses to fulfil the duties offered, while the requirements referred to above and ensuing from the case law are met, this refusal will produce an advantage for the employer in possible subsequent termination or dismissal proceedings.

Anique Sauvé

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