Preventative: camera surveillance
To prevent theft by employees, you, as an employer, can install camera surveillance. Based on CBA No 68, cameras may only be placed to pursue one of the following purposes: health and safety, the protection of the company’s goods, the control of the production process, or the control of the work. The camera surveillance must also be proportionate. The employer may therefore not use the camera surveillance in a manner that is incompatible with the expressly defined purpose.
Based on Article 9, §1 of CBA No 68, the employer must inform the works council beforehand and at the start of the camera surveillance in the company about all aspects of that surveillance regarding what is prescribed in §4 of the provision. If there is no works council, the information must be provided to the committee for prevention and protection at work. If this committee does not exist, the communication must take place directly with the union representatives or with the employees. The absence of prior information results in the presence of unlawfully obtained evidence. However, the Court of Cassation ruled in 2005 that the judge was not obliged to exclude from the proceedings the evidence obtained contrary to the provisions of CBA No 68.
If the cameras are used both to prevent theft by employees and to prevent theft by customers, both the rules from CBA No 68 and from the Camera Act of 21 March 2007 apply.
It is important for the employer to install the camera surveillance in accordance with the legislation. The Camera Act prohibits camera use without the prior consent (e.g. without a pictogram) of the filmed person. Compliance with the Camera Act can also be enforced upon the employer with criminal fines. Covert camera use, contradiction with prior consent as well as contradiction with the procedural requirements of the Camera Act are punishable by a fine of 100 euros to 10,000 euros.
Based on Article 6 of the Camera Act, a prior declaration of the placement and use of surveillance cameras must be made to the police services. If you, as an employer, want to install a surveillance camera in your shop to prevent theft by employees as well as customers, then you, as an employee, will have to declare the use and placement to the police services. Furthermore, you must also keep a processing register that is made available to the Data Protection Authority and the police. You must also display a pictogram indicating that you have camera surveillance.
What can you do as an employer?
Article 35 of the Employment Contracts Act allows either party to terminate the employment contract for serious cause, without notice or before the expiry of the term. Article 35, second paragraph of the Employment Contracts Act defines a serious cause as “the serious fault that renders any professional cooperation between the employer and the employee immediately and definitively impossible”. It is therefore possible to dismiss an employee for theft, if this constitutes a serious cause. Theft can breach the bond of trust that exists between employee and employer.
If you, as an employer, dismiss an employee for theft, it is important to remember that you must prove this. As an employer, you must be able to prove that the employee had the intent to commit theft. The trial judge will sovereignly assess whether the fact in casu constitutes a serious cause. As an employer, it is far from certain that you will win the case. As an employer, you can also include a list of facts in the work regulations that can lead to a dismissal (e.g. theft by an employee). The trial judge does, however, remain competent to judge whether the invoked serious cause can justify the dismissal.
As an employer, you can always report a theft by an employee to the police. Another possibility is a civil party claim with the investigating judge. Through this route, you can potentially obtain a conviction for damages
You might be interested in our advice regarding cameras in your company? Contact our specialists without obligation via our contact form, by email (anti-fraude@everest-law.be) or by telephone (09/334.94.70).