‘Voluntary is not optional’ – NRC

The case

‘Job guards wanted’. When a South Hollander sees this advertisement for a temporary skating rink in Vlaardingen, he immediately thinks that this job is made for him. From December 14, 2019 to January 11, 2020, volunteers are being sought to supervise the skating rink.

An information evening follows and all volunteers receive a blue coat, a sweater, gloves and ice hockey skates to be able to carry out their work on the skating rink in a pleasant way. Their job? Supervising the visitors, being clearly visible – in the blue jacket they received – on the track and assisting the public where necessary.

The evening before the official opening there is a try-out in which the South Hollander is scheduled as the only track guard. He reports at 6:00 PM. Around 7.30 pm he falls horribly and lands on his elbow. He is taken away by ambulance.

This is followed by a long period of treatments and recovery. The volunteer is still incapacitated for work. He holds the foundation that operated the skating rink liable.

Although the foundation has taken out liability insurance for the volunteer work with Nationale-Nederlanden, the insurer rejects liability.

Then accusations follow back and forth. The foundation should have checked whether the track guards could skate properly. Why was no elbow protection provided? The foundation has not given any instructions on how the track guards should behave on the ice. It was dangerous to let the skating guards do their job on skates. But also the other way around: before the accident, the volunteer was skating at a high speed, was spinning pirouettes and was transferring, in short, behaving recklessly.

The verdict: liable

The Court of Rotterdam has the honor of passing judgment. It is true that in this case there is no employment relationship between employer and employee, but the volunteer does perform his task on behalf of the foundation and is scheduled. This entails a comparable duty of care for the foundation. Providing elbow and other protection is not common on Dutch skating rinks. The foundation is therefore not blamed for the lack of this. And she does not have to report that ice is hard and slippery, but according to the judge she should have “instructed her track guards with regard to the way of skating, with the safety of the skating rink guards and visitors being paramount”. And the foundation should have warned that “particularly in view of the dangers of a fall on the hard ice – skating should always be done carefully and not too fast”. The judge points out that this was all the more important because the skating guards had to remain alert for a long time and because there was a risk that, if they had to take action quickly due to a calamity, their attention to their own safety would wane.

The volunteer denies that he skated hard and went in circles, but according to the judge that does not matter. He was working as a job watch on behalf of the foundation at that time and therefore fell under its duty of care. The foundation is therefore liable for the damage that the man has suffered, is still suffering and will suffer in the future as a result of this accident.

The commentary

“Yes, voluntary is not without obligation,” responds Ruben Houweling, professor of employment law and crown member of the Social and Economic Council. “Volunteers have more protection than we think. The volunteer and the employer enter into mutual obligations. Without them even realizing it.”

As far as he is concerned, the legal position of volunteers deserves more attention. He effortlessly mentions more lawsuits that have been fought, even up to the Supreme Court, about liability in the event of an accident involving a volunteer who worked for an organization. For example, there was the man who fell from the roof of the church while helping with the annual maintenance. And someone who suffered a spinal cord injury when he climbed a six meter high tree on behalf of the village association, which the neighbor had made available as a Christmas tree in the village square.

Houweling: “We often call on volunteers – in this case for the local ice rink, but they are also indispensable in healthcare; what if hospitals no longer have volunteers to bring tea and coffee? Then the nurses have to do the same. And just try to organize a sports competition without volunteers.”

The duty of care for the volunteers is often lost sight of. “It is not the case that they always receive the same protection as employees. And if you trip over your own legs, the employer is not liable for that. But is that because the area you work on is very dark, then it is; as an organizer you go over the area and you should have hung an extra lamp.”

Houweling realizes that as a lawyer he is „the party pooper”, but he still wants to emphasize: “Make sure to make grateful use of people who want to commit themselves to a good cause, and who make possible what might otherwise not have been possible, but be aware of the extra responsibilities involved in the deployment of volunteers, no matter how small your organization is. Taking out insurance (also) for your volunteers is often a good idea.”

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