Wangedrag van werknemers - RePub - Erasmus Universiteit ...

about illegally obtained evidence should also be introduced in labour law. The
current jurisprudence on this subject is very dissimilar. This results in legal
uncertainty and legal inequality towards the limits of the competence of
employers to investigate. The labour court should always judge the legality of
the evidence. If the employer obtained the evidence illegally, a sanction should
always be imposed. To keep equilibrium between establishing the truth and
according legal protection it is important that the employer is forced to comply
with the rules. In this way the sanctions control the acts of investigation of the
employer (argument of prevention) and legitimise these acts (argument of
legitimisation). The labour court can choose between various sanctions. One of
them is excluding the illegally obtained evidence. Furthermore a fine can be
imposed. The sanction imposed is determined by the interests that the violated
rule intended to protect, the extent to which the rule was violated and the
interests of the employer for violating that rule. The principles of proportionality
and subsidiarity play an important role in determining the legality of the
obtained evidence and the sanction imposed.
Sanctions by the employer (Chapter 3)
What sanctions can the employer impose and what rules regulate the
competence to sanction? I define a sanction as a reaction to the violation of a
legal norm or legal rule, at least obligation, or the reaction to illegitimate
behaviour, which reaction creates a violation of the interests of the person who
violated the legal norm or rule. In criminal law sanctions are divided into
punishments and measures (non-punitive orders). This distinction can also be
made in labour law. In labour law punishments are sanctions that are imposed to
consciously cause distress. Basis for a punishment is retaliation of guilt.
Measures in labour law (‘ordemaatregelen’) are sanctions that are not imposed
to cause distress, but are focused on the termination of an undesirable situation. I
define an undesirable situation as a situation, caused by the misbehaviour of an
employee, which, because of the interests of the employer, his company and the
other employees, needs to be ended. To make a clear distinction between
punishments and measures I use the requirement of necessity (‘noodzakelijkheidsvereiste’):
if the sanction is necessary to end an undesirable situation it is a
measure. Some sanctions in labour law always have the character of a punishment,
or the character of a measure. The ending of the contract of employment
for urgent reasons has the character of a measure. Nevertheless, it is a very
radical and defamatory sanction, which the employee will experience as a
punishment. Other sanctions sometimes have, depending on the requirement of
necessity, the character of a punishment and sometimes the character of a
measure.
In criminal law the ne bis in idem principle and the principle of guilt
regulate the imposing of punishments. There are three arguments that plead for
adopting these principles in labour law. First the disciplinary labour law can be
seen as a form of criminal law. Secondly, the employer can impose punishments
to his employees; the principles mentioned above protect against the imposing
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