Wangedrag van werknemers - RePub - Erasmus Universiteit ...

of punishments. Finally an argument for adopting these principles in labour law
can be found in the jurisprudence of the European Court of Human Rights
concerning the concept of the ‘criminal charge’. The tenor of this jurisprudence
is that these principles have to be observed if punishments are imposed.
Adopting these principles in labour law leads to the following
conclusions. The employer cannot impose more than one punishment for the
same misbehaviour. Imposing a punishment and a measure at the same time can
be in conflict with the principle of proportionality. Even though the employer
can impose a punishment for misbehaviour if the criminal judge did so too, the
principles of legal certainty and proportionality force the employer to take the
punishment imposed by the criminal court judge into account. This leads to a
moderate external functioning of the ne bis in idem principle in labour law (‘het
aanrekeningsbeginsel’). The principle of guilt implies that the employer cannot
impose a punishment if the culpability is not yet determined. If the employee is
also prosecuted, to determine the culpability, the employer has to wait for the
results of the criminal proceedings. During the criminal proceedings the
presumption of innocence is in the way of imposing a punishment by the employer,
except when the employee explicitly admits to the employer that he has
committed the offence.
If a punishment is not possible because of the presumption of innocence
and the principle of guilt, it does not necessarily mean that the imposition of a
measure is not possible. The employer has to prove that a measure is necessary:
the requirement of necessity. This has to be determined on the basis of the
special circumstances of the case. Purely the suspicion, the custody, the detention
or conviction by the criminal judge is never sufficient to justify a measure.
The consequences have to prove that a measure is necessary. Furthermore, if the
employer suffers damages as a result of the suspicion, the custody, the detention
or the conviction by the criminal judge, is of importance.
In case the nature of the misbehaviour implies guilt, for example theft,
culpability is also a requirement for the imposing of a measure. The ending of
the employment contract for urgent reasons is a measure: guilt is not a necessity.
Nevertheless, if the misbehaviour implies guilt, the radical and defamatory
character of this sanction means that extra demands have to be made upon the
determination of the culpability. Some legal grounds for ending the employment
contract for urgent reasons imply guilt. The requirement of immediacy is not in
conflict with waiting for the results of criminal proceedings: the urgent reason
only arises at the moment the criminal court passes judgement.
If the labour court terminates the employment contract and damages are
awarded, these can compensate the unintentional distress caused by this
measure. In my opinion the awarding of damages on the condition that the
employee will be acquitted or the case will be dismissed, is in conflict with the
central idea of Section 685 of Book 7 of the Dutch Civil Code, the presumption
of innocence, the social interests and the personal interests of the employee
involved.
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