A crane operator loses his certificate for using an unsafe working method. The court finds this unfair. Because, in principle, an employee should do what their employer tells them to. And it is the employer who bears primary responsibility for safe working practices.
On July 19, 2018, the crane operator uses his mobile tower crane to remove asbestos-containing sheeting from the roof of a warehouse. A work basket, open on the long side, is suspended from the crane for this purpose. The two workers in the work basket are secured to a fall arrest device with a six-meter-long lifeline.
Crane operator's professional competence requirements under dispute
According to an inspector from the Ministry of Social Affairs and Employment, the work platform is not suitable for passenger transport and poses a risk of the men falling out. The Inspectorate reported this to DNV GL Business Assurance, the agency that certified the operator. Consequently, on August 15, 2018, DNV revoked the crane operator's certificate for one year.
The crane operator allegedly no longer meets the professional competence requirements because he lifted people in a work platform not designed for that purpose. He thereby violated the Working Conditions Act and the Working Conditions Decree and acted unsafely. The crane operator's objection was unsuccessful. He therefore appealed to the court.
Employer primarily responsible for safe working
According to the court, the work was not permitted in this manner. Several violations were committed, but the crane operator is not to blame for these. While an employee is responsible for their own safety and health, as well as that of others, they must also comply with certain regulations. However, the employee is primarily obligated to follow the employer's instructions. Ultimately, the employer, not the employee, is primarily responsible for safe working conditions.
Crane operator followed employer's instructions
The employee is therefore responsible for workplace safety to a certain extent. But ultimately, they must do what their employer instructs. The working method used can, in itself, pose a serious risk to people. However, according to the crane operator, he followed his employer's instructions. The court has no reason to doubt this, and DNV did not investigate which instructions were given.
Furthermore, it has not been demonstrated that the crane operator was responsible for the decision to remove the asbestos sheets using a work platform. Therefore, the appeal is well-founded.
Driver gets certificate back, revocation revoked
Furthermore, the court ruled that DNV may not issue a new decision on this matter, but that this ruling will replace it. The crane operator will have his certificate reinstated, and the revocation will be reversed. The court chose this approach to avoid keeping the crane operator in uncertainty any longer than necessary. DNV's decision is burdensome and has a significant impact on the crane operator. Without a certificate, he is not permitted to perform his work.
Moreover, during the first interim relief proceedings, the court had already pointed out that DNV had not sufficiently investigated the case. DNV had therefore already had the opportunity to better justify its decision or conduct further investigation, but it did not take advantage of this opportunity.
Source: www.arbo-online.nl
