When we talk about criminal offences in the workplace, we often think of the classic case of theft from the employer. However, the problems are much more diverse than that. Numerous behaviors of the worker can constitute an offence. The consequences that follow vary according to the seriousness of the case.
Many employers want to ensure that their future employees are honest and above board. They are tempted to ask them to produce a criminal record.
An employee's criminal record is sensitive personal data. The employer may only process it in exceptional cases where it is directly relevant to the job. If this is the case, the employee is sometimes obliged to spontaneously mention certain criminal offences committed.
Employees often think they are protected by confidentiality on social networks. He sometimes allows himself to make abusive or defamatory comments towards his employer or colleagues. In addition to violating their duty of loyalty, these comments sometimes constitute criminal offences.
It is well known that employees sometimes use the work computer to access private websites. This is usually not a problem when it comes to harmless sites such as weather forecasting sites. However, the employee sometimes uses this internet connection to access illegal sites such as child pornography or to send offensive messages.
When an employer suspects an employee of committing a criminal offence from a work computer, he is tempted to set up a surveillance system in order to confirm his suspicions and safeguard the interests of his company. In order to do so, the employer must have previously adopted a regulation on the use of the Internet which respects the monitoring procedure provided by the Federal Data Protection Commissioner.
Mobbing and sexual harassment
Mobbing occurs when an employee is the victim of repeated hostile comments or behavior in the workplace aimed at marginalizing him or her. Sexual harassment is defined as any unwelcome behavior of a sexual nature that violates the dignity of the person in the workplace.
Salacious jokes, hand on the backside, touching, insults or defamation... Some of his inadmissible behaviors violate the penal law in addition to constituting harassment.
Termination with immediate effect
Termination with immediate effect is justified when circumstances do not allow the employer to be required to continue the employment relationship until the end of the notice period. The bond of trust that is fundamental to any employment relationship must be irretrievably broken.
In principle, serious criminal offences against the employer or one of his clients constitute just grounds for termination with immediate effect.
What about minor offences, such as petty theft? Can an employer terminate an employee with immediate effect for stealing a filing cabinet or toilet paper rolls?
Sometimes the employer has strong suspicions that the employee has committed a criminal offence, without having formal proof. How should the employer react and how quickly? If the employer does not take the necessary measures, there is a strong risk that the termination with immediate effect will be qualified as unjustified. The employee will be entitled to what he or she would have earned if the employment relationship had ended normally. The bill could be very high!
Access to unions in the workplace
Everyone has the right to freedom of association. This means that every employee is free to join a union to defend his or her rights. In principle, trade unions may approach employees to propose that they join their association.
This freedom sometimes encroaches on the freedom of employers. When trade unions enter the company's premises, it may be a criminal offence. The employer has means to defend himself.
Employers sometimes provide their employees with equipment for the performance of their work, such as a company car or a laptop computer. When the employee is the victim of a theft or a traffic accident, the question of who should pay for the replacement costs will depend on whether the employee is to blame.
An employee sometimes witnesses wrongdoing, abuse or other criminal offences by colleagues or superiors. He can and must denounce these abuses. Yes, but to whom? Can the employer dismiss him freely if he finds this employee a little too talkative?
Recording in the workplace
An interview that could end in a wrongful termination, a desire to catch a colleague stealing... The employee is sometimes tempted to record his interlocutors without their knowledge. This is, depending on the circumstances, a criminal offence. It will only be justified in exceptional cases.
Immediate assistance of a lawyer
When an employer catches an employee in the act of committing an offence, the employer will often have to involve the police. The offender will have a right to counsel as soon as he or she is officially a defendant. The exact point at which this right arises is not easy to determine.
When writing a work certificate, the employer must juggle the duty of truthfulness and the duty of benevolence towards his employee. If he does not want to incur liability towards a future employer, he must mention the serious facts that occurred. Can a criminal offence be the subject of a reservation in the work certificate? If so, in what form?