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 The story of a slaughterhouse. Do you understand the words?

The story of a slaughterhouse. Do you understand the words?

Remember that scene in the movie with Jackie Chan and Chris Rock where Chris says to the Chinese detective: “Do you understand the words that are coming out of my mouth”? If you did, you saw a great movie. If you haven’t and need a few laughs, look it up. My LEGAL column is not about movie reviews, but when I read this next case I am about to share with you, it did remind me of that movie. The key question is:

What can we expect from an employer in relation to employees who do not speak the same language as the employer?”.

I am basing this column on a Dutch case in which an employer gave particular instructions in Dutch to a non-Dutch speaking native and complimented his instructions with hand signs 🤷🏻‍♂️. The employee didn’t understand and got injured on the work floor. Who is liable? Well, read on and find out.  This case is very relevant for us in Aruba, where we have a diverse pool of employees and employers. We have employers, like GMs of hotels, who don’t speak a word of Papiamento and rely on the staff being able to speak English. On the other hand, we also have employees who speak neither Papiamento nor Dutch. Thankfully, many of us can communicate in 4 or more languages. Anyway, let’s see what happened in this case and what we can learn from it.

The slaughterhouse 

This decision can be found using the code: ECLI:NL: RBMNE:2022:3644. The ECLI is short for European Case Law Identifier. The ECLI is an identifier for European court decisions. The identifier consists of five elements separated by colons: ECLI:[country code]:[court identifier]:[year of decision]:[specific identifier]. When court decisions from Aruba are published, they are also cataloged using this methodology.  

The case was about an employee at a slaughterhouse who helped drivers load. During this work, the employee got into an accident. A driver came to collect meat from the slaughterhouse, and the employee helped the driver to put the truck in the loading dock. The employee stood on the loading dock where the truck wanted to dock and gave directions by ‘waving’ his hand. The driver then drove backward. In that signaling process, the employee’s left arm became trapped between the door frame of the loading and unloading area and the truck. After the accident, the employee was taken to the hospital’s emergency room and unable to work for three (3)weeks. There are better ways to end your day.

 

 

 

The liability 

As can be expected, this matter ended up in court. The employee has, among other things, held the slaughterhouse liable for damage from the accident. In the court proceedings, the slaughterhouse confirmed that many of its employees didn’t speak Dutch or were very low literate.  In fact. Many spoke only Arabic. The slaughterhouse also indicated that the truck loading instruction is explained verbally (in Dutch) and that they used words (in Dutch) that are easy to understand. They also claim that they then asked the employees over and over again (ten times) whether the instruction was clear or if it was understood. I am not impressed with this defense. If they had to listen to this argument, I can think of a few judges who would be rolling their eyes heavily or would be ready to lash out at poor lawyers making this argument. Judges are humans too.

The findings of the court were clear. The slaughterhouse had not fulfilled its duty of care. The court found that the slaughterhouse fell short in communicating with the employee. The employer should have done more like: (i) using visual language and pictograms or (ii) providing written instructions in the native language of the employee or (iii) explaining or demonstrating the verbal instructions with an interpreter, and (iv) checking whether the employees have understood the instructions and (v) to verify if the instruction was being correctly applied on the workfloor.  

Language barriers can easily lead to misunderstandings and accidents. Images are an excellent way to convey a message and make employees aware that attention and caution is required. With a warning sign on loading docks emphasizing that people should not stand on the dock ‘waving’ when mooring. The chance of an accident such as this was easily reduced. The conclusion is that the slaughterhouse got slaughtered. The employer should have taken and given more measures and instructions to the employee. The employer has failed in her duty of care and is, therefore, liable for the damage suffered by the employee.

 

The takeaway

The court’s ruling shows that employers must take various (additional) actions for employees who do not speak the native language of the employer to ensure that employees know and understand the safety instructions. If the employer fails to do so, the employer can be held liable for this.

Application

With this in mind, you can also look at other aspects of the work floor where language can be a barrier. Think of your employment agreements, rules, regulations, manuals, etc. What good are they if one or more of your employees do not understand, for instance, Dutch or English? Can you enforce the terms of your contract or house rules if your employee doesn’t understand what was written? Even if he signed? 

Employment contracts

This is why at Gomez Coffie, we regularly update the employment agreements for our clients to keep up with changes in the law, and we can also provide the same contract in English, Dutch, Spanish, and in Papiamento. Each contract is tailored to the client’s specific needs based on their industry. Having the proper contract is essential. It helps you manage your staff and can be of great value in litigation. Also, when it comes to popular beliefs such as “part-timer contracts”, or “on-call” contracts.

I have seen far too many lousy agreements that are either outdated, a product of Internet downloads (from the wrong countries), or contracts shared by folks who lack what often seems even a basic understanding of our labor laws. If hiring #YourFavoriteLawyer is expensive, hire an amateur and see how much that will cost you.

I am only an email away: lincoln@gomezcoffie.com.

#BoAbogadoFaborito

 

See you next week!



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