There is no such thing as a free lunch. Most languages have an expression reflecting the quid pro quo principle. One of the principles of the Roman law of obligations is do ut des: I give you, so that you give me. Everything has a consideration. Yet many people work without expecting a consideration. These are volunteers. Annually, an average of between 45 and 55 percent of the people did volunteer work in the Netherlands in the years 2010-2015. You may think of work in sports clubs, churches, care facilities, work in the community and in schools. I do not know the figures for Curaçao, but I assume that a lot of volunteer work is done here too.
In many foundations and associations a lot of work is done by volunteers. This raises interesting questions for the board of a foundation or association. Should it pay the volunteers an expense allowance? What are the fiscal consequences hereof? Can a board give a volunteer instructions? Can it dismiss a volunteer? Is a foundation liable if a volunteer has an accident during work? And what if the volunteer himself causes damage, is the foundation (jointly) liable?
These are pretty difficult questions, because from a legal perspective the arrangements between the volunteer and the foundation are in a grey area, notably between enforceable law and friendly favor. From a legal perspective, the person who promises his neighbor who suffers from Zika to bring her two bottles of milk, a loaf of bread, and two hundred grams of cheese is not in default if he forgets the cheese. There was an arrangement, but legally it cannot be enforced. This is different when a painter forgets to paint the cornices when he has committed to painting the entire house. He will have to return to paint the cornices, if necessary based on a court order.
Whether or not a consideration has been agreed on is not decisive. Parties’ intention is the focus. What did you want? Quid pro quo or give your cooperation unselfishly? In order to be able to determine whether you are dealing with a volunteer or an employee, according to established case law you have to look at all accompanying circumstances. For instance, is there a relationship of authority? Have working hours been agreed on? This has major consequences for liability when accidents occur, the possibility of dismissal, the possibility to give instructions, and the legal status of these volunteers. I will briefly discuss those consequences below.
If an employee is injured while performing his work, generally the employer is liable. In case of a volunteer, matters are more complicated. What if a volunteer is bitten by a dog at the animal shelter? Or a care provider slips at the hospice and breaks her arm? In those cases, case law differs. Sometimes, compensation of the damage suffered is required, sometimes it is not. In the relationship employer-employee, the first one is almost always liable. In case of a volunteer, the latter often has to pay part of the damage himself. So, it is important to make arrangements on this point in advance, for instance also on taking out insurance.
An employee can be dismissed. An employee also has employment protection. How about a volunteer? You cannot dismiss a volunteer. But you can deny him or her access to the building or the site. Actually, this has the same effect: the relationship has been broken. Can a volunteer defend himself against it legally? He can, but there is a small chance of success.. Moreover, it is a rearguard action. If the relationship is not good, theoretically, you can still be an employee. For a volunteer this is more complicated.
There is no relationship of authority between the foundation or association and the volunteer. That is why you can make arrangements with a volunteer, but he does not have to carry out instructions. You can agree with a volunteer, for instance, that dog kennels 3, 4, and 5 have to be cleaned, or that Ms. Kortijn in room 6 has to be washed. If you give instructions to this effect and the volunteer does not carry them out, there is little you can do about it. So, you have to openly discuss it in advance: what do you expect from each other? In the Netherlands, many people age 55 and older are dismissed. If you still want to work, in many cases you become a self-employed person without employees. This will often be a self-employed person without money. Not only when you exit as a senior, but also when you enter the job market as a young person, you currently often have to work months, sometimes even years, as a volunteer or as a trainee or apprentice. Their legal status is lousy. They earn almost nothing, but serious requirements are certainly set for their considerations. For nothing. In my opinion, a minimal requirement is that the most important rights and obligations are reciprocally laid down. That is better than nothing.
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