Wangedrag van werknemers - RePub - Erasmus Universiteit ...

Finally an additional argument for adopting the ne bis in idem principle
and the principle of guilt in labour law can be deduced from an adjacent branch
of law: social security law. Also in this labour law related legal area it is
considered undesirable to impose more than one sanction for the same
misbehaviour. The principle of proportionality is in the way of imposing
punishment if the guilt is not determined.
The legitimisation of punishment by the employer (Chapter 4)
How is the competence of the employer to impose punishment legitimised? The
legal ground for the competence to punish can be derived, directly or indirectly,
from the (collective) employment contract. If an explicit contractual ground is
missing, the competence can be based upon the relationship of authority, in
accordance with Section 610 of Book 7 of the Dutch Civil Code, and the right of
the employer to give instructions, in accordance with Section 660 of Book 7 of
the Dutch Civil Code. The competence to impose punishments for misbehaviour
in the field of e-mail and internet is reasonably well-regulated. On grounds of
the report of the Dutch Data Protection Authority (Dutch DPA) the employer is
compelled to pursue a policy in this field and to inform the employees about the
possible sanctions. The regulation of the competence to impose punishment for
other misbehaviour is fragmentised and chaotic. Procedural disciplinary rules
are sometimes implemented in collective agreements and personnel manuals.
Furthermore they derive from the obligation of good employment practice. As
far as the substantive aspects are concerned, there are two relevant legal
provisions: the right of the employer to give instructions in accordance with
Section 660 of Book 7 of the Dutch Civil Code, and the financial penalty in
accordance with Sections 650 and 651 of Book 7 of the Dutch Civil Code. The
right of the employer to give instructions is only of limited relevance. The rest
of the substantive disciplinary rules according to the competence to punish are
scattered over various arrangements, especially in collective agreements and
personnel manuals. They are limited to rules about suspension and they are very
different from each other. At least half of all the consulted collective agreements
and personnel manuals contain no rules about punishment.
This leads to the conclusion that the competence of the employer to
punish his employees is not embodied in regulation that legitimises this
competence. This gave cause to examine how legal certainty and legal equality
is guaranteed in criminal law. Employers impose punishment on their
employees; this makes the resemblance between the employer and the punishing
government even bigger. Criminal law by the government is characterised by
rules that are accomplished in a democratic way. It has sufficient guarantees for
legal certainty and legal equality: the constitutional guarantees. The most
important guarantee is the principle of legality: actions by the government are
only legitimised if it has a legal basis. Especially in criminal law this is an
important principle, because in criminal law radical competences are being
practiced. Therefore the principle of legality has an important place and meaning
in the Penal Code and in the Code of Criminal Procedure. The resemblance
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