Gerechtshof Arnhem-Leeuwarden, 23-05-2018, ECLI:NL:GHARL:2018:4677, 200.227.132

Onder meer) in november 2014 heeft [persoon A] [verzoekster] expliciet en uitvoerig aangesproken op haar functioneren en gedrag, met name haar gebrek aan zelfreflectie en onvermogen om te gaan met feedback. Hij schrijft op 4 november 2014:

“ Start

It may happen in life that there is a difference between self assessment and perception of others. When working in companies and teams, perception of others plays an important role and finally determines your status in the group. In the past, I recognised a couple of situations where your self assessment did not match the perception others had of you. I also recognised that when confronted with according feedback you showed a very emotional reaction, feeling primarly hurt. This bears the risk that you miss the chance people want to give you, and as a consequence can be in your way of improvement.

Therefore I recommend you to start reflecting on the perception other people have of you in different situations and identify concrete lessons tot be learned from it.

Stop

On some occasions, both in projects and team situations, I sometimes got unexpected, even inappropriate reactions from your side. People coming to me as your manager shared similar impressions with me. In general, I value the contributions you are making a lot. But both me and others perceive a certain unpredictability in your attitude – as if all of a sudden strong emotions were crossing your way, absorbing a lot of your attention and focus, preventing you from delivering as good as you could do, and as people know you can do.

What may help is building up an explicit distance between the personal, emotionally driven side of yourself, and the role your are playing in the professional context.”

Nadat [verzoekster] een algemeen plan om de kennis binnen de financiële sector van Ecofys te vergroten, had ingeleverd, heeft [persoon B] op 16 september 2016 het volgende per e-mail aan [verzoekster] bericht:

“(…)

Thank you for this first draft. However, I’m afraid that I have interpreted our conversation completely differently than you apparently have. The focus was (and should be) on your personal effectiveness and performance – not on how we will become more successful in the financial sector, or your concrete actions related to that. Yes, any improvement plan should finish with clear actions however before that, it requires more introspection.

(…)”

In zijn e-mail van 22 september 2016 heeft [persoon B] aangegeven welke competenties behorende tot de functie Managing Consultant verbetering behoeven bij [verzoekster] :

“(…)

Please find below the general feedback, evaluation and observations I provided to you in the follow-up talk tot the MYR. I have included examples to support the general evaluation, although clearly it is the pattern that matters most.

Based on this, I would like to continue our conversation next week. This would also be the basis of the Personal Improvement Plan we talked about. As I said during our meeting, these two areas of improvement are fundamental to our work. Currently, this hampers me in awarding you - with confidence - the project leadership for major projects and clients. We must overcome this. (…)”

In een e-mailbericht van 10 oktober 2016 schrijft [verzoekster] het volgende aan [persoon B] :

“(…) I much appreciate the feedback I have received. However, since it came late, in a high dose and in written form, I initially felt attacked also, which may have hampered the dialogue in recent weeks. It would have been helpful to receive more casual remarks and suggestions along the way. (…)”

De beoordeling over 2016, die plaatsvond op 9 februari 2017, was ook onvoldoende. Het functioneren van [verzoekster] werd toen over het geheel weer beoordeeld met 2,5. [persoon B] schreef onder meer het volgende:

“Sales credits 83k -> deep underperformance (…)

During our MYR, we already discussed your mode of communication and collaboration with manager, team members en clients which is not effective. Often misunderstandings happen, in combination with a negative tone of voice, and emerging distrust. (…)

In our MYR, we discussed the urgent need for you to step up in performance. After that, you received ample time and support to work on your development. It took quite long for “the message to sink in”, and I have seen too limited actions from your side to realize the desired change. Don’t forget: in the end, you are the owner of your own development! (…)

Unfortunately, your performance in 2016 is significantly below expectations. First and foremost with a very weak score on the Clients dimension. Secondly, you struggle taking solid content leadership. Finally, I regret to see limited progress on these dimensions, in spite of feedback and support given.”

Op 9 februari 2017 heeft [persoon B] aan [verzoekster] bericht dat het de intentie van Ecofys is het dienstverband te beëindigen. Dat heeft hij als volgt toegelicht:

“This afternoon we have had your annual appraisal talk.

(…)

. I am not satisfied with your overall performance, as also reflected in the PMDP scores for 2015 and 2016.

Specifically:

. Sales have been significantly below target

. Your mode of communication and collaboration with manager, team members and clients is not effective and below the level expected for Senior Consultant (…)

. Content leadership, both regarding quality of problem solving and creative thinking as well as your ability to drive projects to high-quality output, is below the level expected form Senior Consultant

. I have indicated this to you in our Mid Year Review talk, yet I have not seen sufficient improvement in the areas indicated

(…)”

Daarop heeft [verzoekster] een gesprek met de Managing Director van Ecofys, de heer [persoon C] , verzocht. Deze heeft met [verzoekster] gesproken op 23 februari, 10 maart en

14 maart 2017. Op 2 maart 2017 heeft [verzoekster] ook een gesprek gehad met de HR manager [persoon D] , die aan [verzoekster] een compilatie van de feedback heeft gezonden. [persoon C] heeft [verzoekster] uitgenodigd om met een concreet verbeterplan te komen met doelen, die zij in een periode van drie maanden zal kunnen bereiken. Hij heeft dit bevestigd in een e-mail van 16 maart 2017:

“(…)

On Tuesday 14 March 2017 we had a conversation in which I discussed with you two options:

1.We’ll start the discussion to terminate your employment contract at the short term, as this is the clear recommendation of line management based on 2.5 years feedback.

2.We start with an improvement period of 3 months based on a very clearly developed PDP (Personal Development Plan) with clear milestones to be achieved after 3 months. If these milestones are not achieved, we will proceed with the process to terminate your employment contract. Contrary to line management’s advice, I’m considering giving you a last chance. (…)

In our talk today we continued to discuss the options I shared with you on Tuesday. You clearly indicated to me today that you prefer option 2 (PDP). However, you did not show me any kind of draft PDP yet (acknowledging that you’re working on it), although I clearly asked you for this on Tuesday.

I feel that this doesn’t show the right urgency to take immediate steps for improving your performance as a Managing Consultant of our company.

Giving you a last chance, in our talk today I stated that I want to see a PDP which is measurable, actionable and closes the bridge based on the feedback of your managers and feedback I gave you during our various conversations and the requirements we’ve set for

the level of Managing Consultant (see also competency framework).

(…)”

In een schriftelijk stuk van 23 juni 2017 heeft [persoon A] het volgende verklaard:

“I have been informed that there is an on-going legal issue with Ms [verzoekster] .

She is since 2015 no longer a direct report, but I was her manager for several years.

Apparently, she claims that I have always been very satisfied with her performance during that time. I do feel it is appropriate to comment on her statements with regard to that period of time, because they do not reflect the full picture.

Difficulties in internal cooperation due to a lack of self-reflection, sales result and billable hours have been issues and topics within our conversations at the time I was her manager.

As it shows in the PMDP over 2014, difficulties in her cooperation with internal clients were already specifically mentioned “internal clients in a number of cases ( [persoon E] , [persoon F] , [persoon G] ) found it difficult to work with you (as discussed with you during the year / documented in feedback forms)”.

Also further back in time (2013) I already pointed out in a PMDP the need to improve her teambuilding role in Utrecht. Overall, it was clear that [verzoekster] was struggling in her role. The nature of our talks werd problematic. (…)

Summarizing I do not recognize at all [verzoekster] ’s line of defence that I have been satisfied about her performance and that the performance review of 2014 just contained a simple (isolated) remark about making use of the feedback forms by her colleague. She did not want to agree to the scores I gave her and did not take my feedback seriously. (…)”