Wangedrag van werknemers - RePub - Erasmus Universiteit ...

etween the employer and the government, added to the imperfect regulation for
the competence of the employer to punish, leads to the conclusion that the
regulation in labour law, concerning the competence of the employer to punish,
needs to be expanded. In this way legality can lead to legitimacy.
The constitutional guarantees can be an inspiration to expand the
disciplinary rules in labour law. For example, the law should provide the
regulation. Only when absolutely necessary, considering the need for
customized arrangements, the regulation can take place on a lower level, for
example in collective agreements. If a customized arrangement on the level of
the company is needed, the works council must have the right of approval.
Especially the procedural disciplinary rules are suitable for regulation in
statutory provisions. Law can provide an independent complaints procedure in
order to prevent a dominant position of the employer. This results in a system of
checks and balances. The principle of legality is of major importance for the
regulation of the substantive disciplinary rules. Therefore it should get an
embodiment in law: employees have the right to legal certainty and legal
equality concerning behaviour that is punishable. Furthermore, law should
provide the regulation of the possible sanctions and the conditions for imposing
those sanctions. The rules in which certain behaviour is made punishable require
regulation on the level of the business sector or company.
The legislative proposal to regulate the disciplinary rules in labour law,
submitted in 1994, does not comply with the requirements I mentioned. The
proposal only provided rules for suspension and financial penalties. According
to the Explanatory Memorandum there was no need for more extensive
regulation of the disciplinary rules in labour law. The hearing in the House of
Representatives resulted in the withdrawal of the legislative proposal: the
current rules should be sufficient. Considering my preceding conclusions, I do
not agree.
Comparative law study: German labour law (Chapter 5)
German employers use the same methods of investigation as Dutch employers
do. The regulation has also resemblance with the Dutch regulation. The
constitutional ‘Persönlichkeitsrecht’ (Section 1 and 2 Grundgesetz) is
comparable to the fundamental right of privacy. The ‘Persönlichkeitsrecht’ has
great importance in German law; it is the point of departure for the regulation of
the competence of employers to investigate. Furthermore, the German legal
system has a Judicial Data and Criminal Records Act and a Personal Data
Protection Act (‘Bundesdatenschutzgesetz’). Contrary to the Dutch jurisprudence
the ‘Bundesdatenschutzgesetz’ is mentioned regularly in German
jurisprudence concerning labour law issues.
Employers can only use hidden cameras if the employees were
informed in advance. The ‘Bundesarbeitsgericht’ (BAG) considers the use of
cameras on the work area far more radical than in public places and the use has
to comply with strict conditions. Concerning the investigation of telecommunication
judges have to make a distinction between business and private
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