Is a volunteer employed by the association? After all, you cannot simply dismiss an employee.
Employment contract
This question is addressed in a case in which the Amsterdam District Court recently ruled. It concerns a technical coordinator at an amateur football club. The association terminated the relationship with the coordinator in March 2018. The coordinator is of the opinion that his employment contract was unlawfully terminated. He claims continued payment of wages for the remaining 3 months of the term of his contract.
What is strange in the case is that there is an employment contract prepared by the coordinator, which has not been signed by the association. The association has sent the coordinator a “Volunteer Trainer's Agreement”, but this document too has apparently not been signed. The coordinator was active at the association from 1 September 2017 to the beginning of March 2018 and received remuneration of €550 per month.
Circumstances of the case
The court ruled that all the circumstances of the case must be used to assess whether there is an employment contract. The manner in which the parties have given effect to their legal relationship must be taken into account. What the parties intended is not decisive.
The court considers it sufficiently substantiated that the coordinator's work personal must fulfil. The association is concerned with the person of the coordinator. Except in case of illness and other emergencies, he is not to be replaced.
Also, according to the court, a employment relationship. The coordinator's tasks are described in the association's Technical Youth Plan. And specific tasks and responsibilities are described in the “Volunteer Regulation for Trainers” drawn up by the association, as well as that an assessment of the trainer takes place twice a season.
The court concluded from all this that there was an employment contract. And it has not been validly terminated. There is no urgent reason required for instant dismissal, which was communicated to the coordinator without delay. The court orders the association to continue paying wages for the remaining term of the contract.
Directors liable?
The coordinator holds the directors of the association personally liable for the payment of back wages. They are accused that they should have prevented the association's unlawful actions towards the coordinator. This refers to the tax construction used by the association. To comply with the rules of the tax volunteer scheme, the amount due to the coordinator had to be transferred to four different bank accounts.
The court does not go along with this. Although the conduct does not appear to comply with tax requirements, this fact alone is insufficient to assume the directors' intended personal liability. For each director, the coordinator should have stated what specific conduct that director is personally blamed for.
The tax volunteer scheme means that no payroll taxes need to be withheld on allowances paid to a volunteer when a maximum of €150 per month and €1,500 per calendar year is reimbursed or provided to the volunteer. See our factsheet Volunteer. The volunteer scheme amounts will be increased to €170 per month and €1,700 per year from 1 January 2019.