The subordinate nature of the employment relationship is negated where the professional, although included in the company organization chart, is not subject to any supervision, directives and control by the top management.
Case ref: Cassazione Civile, sez. lav., 13 febbraio 2020, n. 3640
With Judgment no. 3640 of February 13th, 2020, the Court of Cassation has ruled on the recognition of the subordinate nature of the employment relationship of a professional who carries out managerial tasks.
In acknowledging the subordinate nature of the relationship, the Supreme Court reiterated that proof is required that the professional is subject to “even a mild or lesser form of supervision and control by the employer, as well as to coordination of the work, according to the company’s organizational structure”.
Therefore “the hetero-direction of the working activities, even if interpreted reasonably with regard to the intellectual performances, is therefore the decisive criterion for identifying the autonomous or subordinate nature of the work” as provided for by Article 2094 of the Italian Civil Code.
In the case in point, the Supreme Court upheld the decision of the lower court on merit, which had excluded the subordinate nature of the employment relationship of a Technical Director, remarking the complete lack of direction and control from the management: “although some elements that normally characterize the functions of a worker with a managerial qualification are highlighted, from the point of view of the so-called downward chain of command, any reference to the upward chain of command is totally absent, with particular reference to the top management of the company and the directives received from them”.
Based on these grounds, the Supreme Court rejected the appeal, stating that there was no employment relationship between the company and the professional, given the lack of evidence relating to the manner in which the top management exercised control and supervision over the professional, since ”inclusion in the business organization chart of itself is irrelevant in that it is a neutral element”.