Wangedrag van werknemers - RePub - Erasmus Universiteit ...

Summary
Subjectmatter and issue (Chapter 1)
The subject of this thesis is misbehaviour of employees. Employers tend to
investigate and sanction misbehaviour of employees. This study investigates the
question whether there are (sufficient) rules to legitimise investigation and
sanctioning by employers (in the Netherlands), and the subquestions that arise
from this issue.
In this study I first define misbehaviour as actual behaviour that comes
under the description of an offence. Furthermore, I define misbehaviour as all
behaviour, not flowing from the employee’s obligation to do his work, which is
unacceptable to the employer. The phrase ‘unacceptable to the employer’ contains
a subjective aspect, which leads to indistinctness and uncertainty about
when misbehaviour has occured: the decision lies on the judgement of the
employer, which can lead to arbitrariness. This results in a tension between the
freedom of judgement of the employer on the one hand, and the legal certainty
and legal equality of the employees on the other. This tension can be neutralized
by placing the competence of the employer to investigate and to sanction in a
scheme with optimal guarantees for the legal certainty and legal equality of the
employees. Under these circumstances the practise of the competence of the
employer to investigate and to impose sanctions is legitimised. This gives cause
to examine whether the current rules, which regulate this competence of the
employer, are sufficient, or additional rules are required.
Investigation by the employer (Chapter 2)
Employers use methods of investigation that resemble the methods of
investigation used in criminal investigations. Employers investigate into e-mails,
telephone conversations and the use of Internet. Besides, they make use of
hidden video cameras and private detective agencies. Conducting investigations
themselves is more effective and more efficient for the employers. Legal basis
for the competence to investigate is Section 611 and Section 660 of Book 7 of
the Dutch Civil Code, combined with the special relationship of trust between
the employer and the employee.
The competence of the employer to investigate is regulated by many
rules. First the employer has to respect the fundamental right of privacy of the
employee. If the employer makes it known to the employee in advance that he
was going to investigate his behaviour, the employee cannot refer to the
fundamental right to privacy. In that case the employee did not have a
‘reasonable expectation of privacy’. This ‘kenbaarheidsvereiste’ is also mentioned
in a couple of other rules that regulate the competence of the employer to
investigate: the Personal Data Protection Act (WBP) and Article 139f of the
Dutch Criminal Code.
The WBP is nearly always applicable to the methods of investigation
used by the employers. Two very important principles that constitute the basis of
the WBP are the principles of proportionality and subsidiarity. To justify the
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