The position of director of a limited company is compatible with the status of employee of the same, where it is ascertained, in practice, the performance of duties other than those of a director, which are subject to the company’s hierarchical and disciplinary regime.
Court of Cassation, Taxation Section, Judgement 20 April 2021 no. 10308
With the ruling under discussion, the Court of Cassation offers an extensive examination of the compatibility between the position of director of a company and that of employee of the same.
In upholding the decision of the Court of Appeal, the Supreme Court of Cassation preliminarily excludes the cumulative nature of the qualities of sole director and employee of the same company, “not being able, in this case, to be subject to the control and disciplinary power of others, which is a typical requirement of subordination, and for the substantially entrepreneurial nature of the managerial activity carried out by the sole director”.
Similarly, the existence of an employment relationship is to be excluded in the case of a sole shareholder “since the concentration of the ownership of the shares in the hands of a single person excludes – despite the existence of the company as a distinct legal entity – the effective subordination of the sole shareholder to the directives of a corporate body, since the constitution and management of the employment relationship cannot be linked to a distinct “corporate body“.
A different assessment is required, however, when discussing the working relationship established between a member of the board of directors of a joint-stock company and the company itself “since, in such a case, the configurability of a subordinate employment relationship cannot be ruled out, when there exist the characteristics of subordination, notwithstanding the corporate office, to the directives, control and disciplinary power of the body of directors of the entity“.
Therefore, continues the Court of Cassation, considering the abstract possibility of establishment, between the company and the individual who manages it, of an autonomous and parallel relationship that can take on the characteristics of subordinate employment, it must be ascertained in practice the assignment of duties other than those of the corporate office held and to demonstrate that the activities carried out are characterized by the typical features of subordination under Article 2094 Civil Code.
The Supreme Court of Cassation reminds us that “for the purposes of qualifying as a subordinate the executive’s employment relationship – when he is the holder of corporate offices (because he is in charge of the management of the entire business or a branch of it), enjoys wide margins of autonomy and the power of management of the employer is manifested not in orders and continuous controls – it is necessary to verify whether the work carried out by the same can still be classified within the specific business organization, identifying the nature of the duties performed, and whether it can be considered subject, even in a slight form to directives, orders and controls of the employer, as well as the coordination of the work according to the organizational structure of the company (Supreme Court, 1/08/2013, no. 18414; Supreme Court, 10/05/2016, no. 9463; Supreme Court, 19/11/2018, no. 29761)“.
In this case, the subordination must be confirmed by the nature of the duties (other than the functions of the office held) assigned to the same (Supreme Court, August 10, 1999, no. 8574).
Moreover, continues the Supreme Court, “when the element of subordination of the employee to the directives of others is not easily identified because of the peculiarities of the duties (and their intellectual or professional nature) and the nature relationship, the distinctive parameter of subordination must be assessed or excluded by referring to the so-called complementary and secondary criteria, such as those of collaboration, of the agreed remuneration, of the coordination of the job to the organizational structure set by the employer and the absence of risk borne by the worker, elements that, without each one, can be examined globally“.
Thus, in this case the Supreme Court upheld the judgment of the judges of merit noting that they have clearly and correctly pointed out that, “in this case, given the extent of the powers granted to the worker and the absence of controls by the governing body of the company, they cannot be considered activities of a subordinate employment relationship, resulting on the contrary the exercise by the director of the management of the company through the performance of functions that are clearly attributable to his position as a director of the company”.
The Court of Appeal judges, continues the Supreme Court “have, in this way, excluded both the performance of duties other than those precisely pertaining to the corporate function and strong evidence of the existence of the bond of hierarchical subordination, absence of the employee being subject to the managerial, organizational, disciplinary and control of the board of directors of the company”.