Wangedrag van werknemers - RePub - Erasmus Universiteit ...

use. In case of private use is, besides the ‘Bundesdatenschutzgesetz’, also the
‘Telekommunikationsrecht’ applicable. Finally, in accordance with Section 87,
subsection 1 number 6 ‘Betriebsverfassungsgesetz’ (BetrVG) the employer
requires the approval of the works council for the use of cameras and the
investigation of telecommunication. The answer to the question if the works
council also has the right of approval concerning the use of private detective
agencies, is controversial.
In German labour law the rule applies that illegally obtained evidence,
in case the employer violates the rules mentioned above, cannot be used in a
legal procedure. From the jurisprudence of the BAG and the ‘Bundesverfassungsgericht’
(BverfG) can be concluded that especially violation of the
‘Persönlichkeitsrecht’ results in excluding of the evidence. In judging the
legality of the obtained evidence the labour court has also to take into account
the interests of the employer. The circumstances of the case have to point out
which interests have to prevail. The principles of proportionality and
subsidiarity are of great importance in this balancing of interests.
Just as in Holland, German law does not provide the disciplinary rules
of labour law. The German employer can choose between several sanctions in
case the employee misbehaved. He can disapprove of the behaviour and threaten
the employee to dismiss him if he does not improve his behaviour
(‘Abmahnung’). Furthermore the employer can suspend the employee
(‘Suspendierung’), which right is limited by the right of the employee to actual
employment. The employer can impose two sanctions with a more punitive
character: the ‘Vertragsstrafen’ and ‘Betriebsbußen’. The ‘Vetragsstrafen’ are
(financial) penalties that are arranged in the employment contract, collective
agreement or works agreement, in case the employee does not fulfil his
obligations flowing from the employment agreement. The ‘Betriebsbußen’ have,
in contrast to the ‘Vetragsstrafen’, a disciplinary character; they intend to
prevent and punish certain misbehaviour. The most severe sanction the
employer can impose is dismissal of the employee involved. If the employer
bases the dismissal on the suspicion the employee committed an offence, or
another severe violation of the employment contract, which makes continuing
the employment contract impossible, it is called a ‘Verdachtskündigung’. It can
be distinguished from the ‘Tatkündigung’ and is accepted as a ground for a
dismissal for urgent reasons. Nevertheless, it is not undisputed; a dismissal
based on a suspicion has a radical character, is defaming and implies the danger
of a wrong judgment. For this reason the BAG sets high requirements on the
admissibility of a ‘Verdachtskündigung’. The BAG has explicitly pointed out
the defaming and radical character of the ‘Verdachtskündigung’, but does not
consider it to be in conflict with the presumption of innocence.
In case the employer bases the dismissal on misbehaviour that has
already occurred, it is called ‘Tatkündigung’. A distinction can be made between
offences committed at work and in private life. In principle, offences committed
in private life do not justify a dismissal, unless other circumstances necessitate
the dismissal. Finally, German labour law provides, in contradiction to Dutch
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