Wangedrag van werknemers: de bevoegdheid van werkgevers tot opsporing en sanctionering
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The subject of this thesis is misbehaviour of employees. Employers tend to investigate and sanction misbehaviour of employees. This study investigates the question whether there are (sufficient) rules to legitimise investigation and sanctioning by employers (in the Netherlands), and the subquestions that arise from this issue. Both for investigation by the employer and for sanctioning by the employer the resemblance between the relationship employer-employee and government-citizen is of importance.As far as investigation by the employer is concerned, I concluded that the current rules legitimize the competence of the employer, on two conditions. First a legal rule should be introduced that explicitly regulates the fundamental right of privacy of the employee. For the introduction of such a legal rule support can be found in German labour law. In this legal system the "Persönlichkeitsrecht" is the starting-point of the regulation of the competence of th! e employer to investigate. Secondly, unambiguous rules about illegally obtained evidence should be introduced in labour law. This condition also finds support in German labour law. Concerning imposing sanctions by the employer I concluded that the ne bis in idem principle and the principle of guilt should also be adopted in labour law. Once more support and inspiration can be found in the German legal system: the BAG sets high requirements on the admissibility of a "Verdachtskündigung". Furthermore support can be found in the adjacent legal branch of law: social security law.To legitimise the imposing of punishments by employers, the current regulation should be expanded. In this way legal certainty and legal equality of the employees can be guaranteed. The constitutional guarantees can be used as inspiration. This leads to the conclusion that the expansion should take place preferably on legal level. Only when absolutely necessary, considering the need for customized! arrangements, the regulation can take place on a lower level. Finally Dutch labour law should provide an independent complaints procedure. Again inspiration can be borrowed from the German labour law system.
Loonstra, Prof. Mr. C.J. (promotor)
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