Court: first offer coaching

Court requires employer to offer poorly-performing employee coaching before terminating contract.

The case described below illustrates the fact that applications to terminate an employment contract are not always granted. In this case, the employer accused the employee of performing poorly. However, the court doubted the strength of the supporting evidence. Crucially, the court was not convinced that the working relationship could not be restored. The court proposed that the parties try to rebuild the relationship with the help of a programme of coaching.

The facts of the case

The employee had worked at a hospital as an ICT infrastructure administrator since November 2001. Up to the end of March 2005, his employer had rated his performance as good. He was then given a new supervisor. The employee voiced his frustrations about the organisation of his department to his supervisor. In early June 2005, the employee discussed the matter in an interview with the supervisor.

In that interview, the supervisor suggested that the employee was not giving sufficient consideration to his own behaviour and actions. He was alleged to be apportioning too much blame for the problems to others. On 3 May 2005, the employee reported sick due to symptoms of stress. Some time later he attempted a phased return to work, but this was unsuccessful. The employee remained on sick leave until 1 November 2005. When he reported for work again on that date, his employer refused to allow him to return to work.


The employer proceeded to submit an application to the Sub-District Court to rescind the employment agreement, arguing that the employment relationship had been severely disrupted and blaming the employee for this. The employer claimed that the employee had refused to reflect on his own actions, preventing progress with problems and bottlenecks within the organisation. The employee disputed all these arguments and argued that the request for rescission should be refused.

The Sub-District Court refused the rescission application. The judge held that it had not been adequately demonstrated that the relationship between the parties had been damaged to such an extent that it was no longer possible to restore trust. He explicitly stated that a decisive factor was that the employee had performed his job to the hospital’s complete satisfaction until March 2005. The Sub-District Court sought an explanation for the fact that the relationship deteriorated in such a short period.

Coaching programme

The Sub-District Court commented: “In a professional organisation such as the Hospital, a modern concept of being a good employer means that the employer must of its own accord offer an employee in a situation such as that of this employee a coaching programme so that the employee gains a clear picture of his own position in this organisation and of the impression that others have of his performance within the organisation without it being said that the employee’s performance is unsatisfactory.”

A notable feature of this case is the fact that the Hospital did not mention poor performance by the employee either. If the employee had received coaching, he would probably have realised at a certain point that is generally wise to obey urgent requests by your employer to reflect on your own actions and would have gained a clear picture of the complexity of an organisation such as the Hospital and his position in it. The fact that an employee is prepared to reflect on his own actions need not necessarily constitute any acknowledgment that he has fallen short in the performance of his obligations to his employer.”


The refusal of the rescission application in this case is not in itself remarkable. It is consistent with the approach taken in earlier decisions. According to decided cases, an employer who apportions blame to an employee with respect to his performance is required to attempt to improve that performance, for example by offering courses and training, before taking further action. This obligation to make an effort appears increasingly to apply to resolving differences of opinion as well.

There is one surprising aspect of this decision, which is that the Sub-District Court gets quite involved in considering the cause of the dispute. The Sub-District Court judge takes the initiative in proposing that the parties should try to resolve the situation with coaching before going any further. The judge also explicitly states that in such situations modern ideas of being a good employer require that a professional organisation should of its own accord offer the employee a coaching programme.

Don’t give up too easily

This is only one judgment from a random sub-district court judge. Despite this, the judgment is quite revealing about the way in which a sub-district court is likely to view professional organisations and the role of a modern employer. This sub-district court judge clearly believes that it is not acceptable to proceed too quickly to give up on a long-term employment relationship following a hefty dispute but that other means should be tried first, with coaching being a promising approach in the sub-district court’s view.

Another key aspect of the Sub-District Court’s judgment is that starting a coaching programme should not automatically be interpreted as an acknowledgement by the employee that he has failed in his obligations towards the employer. Instead, the purpose of coaching in a situation like this is to gain mutual understanding of the complexity of the employer’s organisation and the employee’s position within that organisation. The main focus is on dispute resolution rather than establishing a failure in performance for which the employee can be blamed.

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