Subordination and relationship of subordination : A dangerous amalgam (1/2)

23 September 2018

The relationship of subordination is a jurisprudential construction a historical vision of which does not correspond to the current social reality. It must be revisited, along with its name, in order to facilitate the alignment of professional relations with employees’ commitment requirements.

Subordination is “the state of being subject to the authority of someone, especially within a hierarchy”. Le Grand Robert refers to the terms subjugation, dependence, slavery, inferiority, obedience, suborder, guardianship, vassalage, and discipline. It adds that subordination is the “submission to a thing”. Submission is defined as “the willingness to submit, to obey”. It is the attitude of “someone who is submissive, docile, humble, resigned”. Submission is also described as “the action of submitting, of ceasing the fight, of accepting an authority against which a combat has been waged”. The behavior of some employers and of their managerial line, and the resigned acceptance of their employees, suggests that subordination and submission have their place within the professional relationship. Others add that the employment contract is characterized by a relationship of subordination that is stronger or weaker depending on managerial choices. Indeed, management can place itself on a wide spectrum between an autocratic management and the so-called liberated company. By dint of this amalgam between the relationship of subordination and subordination, “managers” and entire organizations feel empowered to make demands that do not comply with labor law. Often in good faith. To dispel this confusion, it is necessary first of all to recall the definition and nature of the subordination relationship which is the counterpart of the economic risk borne by the employer. The latter must assume it, whatever the origin of the capital and the purpose of the activity (commercial or public service mission). It is one of the determining factors that distinguishes the employer-employee relationship from the commercial or subcontracting relationship. The Court of Cassation took a position very early with regard to this criterion, whether with respect to jurists (1), postal workers (2), dental surgeons (3), pharmacists (4), or more recently, agents (5), doctors (6), or supermarket sales staff (7). Since it assumes the economic risk, it is legitimate that the employer should determine the organization of its business and the means that it deems the most appropriate to the success of its activity. Consequently, the following fall into the category of an employment contract and not a commercial relationship or relationship with a self-employed person: the relationship with a person for whom the company determines the place of work, working hours, schedules, provides work tools and procedures, whether reception hostesses (8), experts, athletes (9), physiotherapists (10) or physicians (11). According to this logic, the employer must have the necessary authority to enforce this organization. It must be able to give instructions and make sure they are followed.

The performance of work under the authority of an employer

The assessment of the reality of this power varies depending on the profession practiced by the interested party. Thus, it will be different for a management function requiring broad autonomy and a low-qualification position intended for tasks ordered and determined in advance. It was thus judged that the following parties were subject to this authority of the employer: an advertising specialist required to consult his employer for all important decisions (12), or a teacher giving lessons according to government programs (13), a real estate negotiator, who received from the realtor for whom she worked precise and imperative instructions, and who acted solely on its instructions (14), occasional billposters who worked according to general guidelines as to the number of posters to be placed and the distribution frequency (15). To reinforce its authority, the employer must have the capacity to punish. Accordingly, it has been judged that the following are subject to the general rules, and are therefore operating within the framework of an employment contract: “agents” against whom the company had a power of sanction “consisting in deciding not to award any further missions” (16). In summary, the Social Chamber of the Court of Cassation defined the relationship of subordination in a judgment of November 13, 1996 as follows: “the performance of work under the authority of an employer who has the power to issue orders and directives, to supervise their execution and to sanction the failings of the subordinate”. This definition is still the current reference used by judges to determine the nature of the contractual relationship.

Although it is legitimately acknowledged that the employer, since he assumes the economic risk, may give orders and directives and sanction failings, there is no text anywhere that requires the employee to be “a person who is submissive, docile, humble and resigned”. The relationship of subordination defined in the employment contract does not establish a subordination, much less so the submission of the employee’s person to that of the employer or his representative. This apparent inconsistency between the relationship of subordination, on the one hand, and subordination on the other raises the question of whether the relationship of subordination actually forms part of the employment contract (17). In an article published in May 1999 Alain Boubli, Advisor to the Court of Cassation, entitled one of the paragraphs, “The legal subordination relationship is no longer in the employment contract”. He points out that the inequality between the employee and the employer is not determined by the employment contract but results from the economic system, which incidentally, reverses the direction of the inequality in the event of a shortage of certain skills on the labor market. He questions the position of the relationship of subordination in teleworking or in the autonomy justifying the forfaits jours system (fixed number of days worked during the year), in the exercise of the right to strike, a constitutional right, in the prohibition on the employer from modifying the contract without the consent of the employee. On this last point he observes that hierarchical power would then be confined to working conditions, which no longer concerns the contract itself but rather human resources management. These reflections were expressed nearly twenty years ago and are still relevant insofar as it appears that the exercise by many employers or their “managers” of a form of submission of the employee is incompatible with the reality of the relationship of subordination. The purpose here is not to determine whether or not the subordination relationship is part of the employment contract. It is part of the professional relationship. By pursuing the analysis from other points of view, we try to understand its nature. In a publication of January 2014 (18) Jacques Dechoz, Labor Inspector, Doctor of Philosophy, discusses the evolution of work relations and titles his article “Work relationships: from the relationship of subordination to subjection”. He pointed out that the relationship of subordination “was part of a constellation centered around the boss, the internal rules and the pecuniary sanction that, for a long time, was the key sanction within the company, a symbol of the employer’s power”. In his own firm the employer was the master, and the employee was subject to his authority. Taking into account the effects of the economic transformation on the management of companies, where founder-managers are becoming fewer and fewer, he observes that a new form of submission has emerged, justified by the relationship of subordination. This domination is now expressed more insidiously through staffing mechanisms such as the assessment interview or the individualization of remuneration, which is reminiscent of the power of pecuniary sanction. He adds that this subjection falls outside the scope of the law, unlike disciplinary power, “precisely because it no longer relates to prohibition and punishment, in the confines of the company alone, but to the entire individual – including outside the walls of the company – in the form of benevolent control and the rewarding of submission”. The submission that results from this subjugation is no more legitimized by the relationship of subordination than that which would result from the exercise of an autocratic power. Light can be shed by examining the question of insubordination, “the refusal to submit” according to Le Grand Robert, which adds “the state of not be subordinated to something or someone” which stands in opposition to subordination.

The examples are numerous

It was thus held that the refusal to submit to clocking-in constitutes a serious act of insubordination, with the employer having the right to monitor hours worked (19). The same is true of the refusal by the employee to work overtime at the request of his employer, on an exceptional basis, and within the limit of the annual quota, without any legitimate reason, and which disrupted the proper functioning of the business (20). The following also constitute insubordination: the repeated refusal by an employee to perform tasks coming under his contract (21), to carry out an exceptional task on a Saturday, even though he had been informed several months in advance and this task was part of his professional obligations (22), the refusal to perform an unusual, short-term task that did not call into question the employee’s qualification (23), repeatedly refusing the new organization of the company, the refusal to submit to the hierarchy of the new operational director and to devote more time to the creation of new products (24), or the casual behavior of an employee and his rejection of the employer’s management powers (25). Insubordination may also be the refusal to apply a mobility clause lawfully implemented by the employer (26), especially where there is no legitimate reason (27). Conversely, no act of insubordination is committed by the following persons: an employee who refuses to comply with a protective dismissal verbally ordered by the employer, even though the judges had observed that no fault could be blamed on the employee (28), or a person who refuses to perform a task that does not correspond to his qualification (29) or a person who refuses to work under improper conditions (bad ventilation, faulty heating, and lack of fire protection). (30) It follows that insubordination is not the refusal to submit to the will of the employer, but rather the refusal to fulfill one’s contractual obligations, provided that the employer fulfils his own obligations. There is no submission here. Moreover, in certain circumstances the employee must be careful not to submit. For example, it has been held that the relationship of subordination does not in itself exonerate an employee who facilitates fraud perpetrated by an officer of the company, and that the employee must refuse to take part in acts of embezzlement committed to the detriment of the employer by a superior, even if they are ordered by him (31). The courts have also deemed justified the dismissal of an employee who participated, for the benefit of another employee under whose control he was placed, in the misappropriation of salvage material, (32), and that the state of subordination towards a superior does not entail exemption from criminal liability (33). The subordination relationship does not therefore organize the employee’s submission to his employer or his representatives. It should also be noted that an employer who relies on the economic imbalance to subjugate the will of the employee is liable to a penal sanction.

“An extension of a machine tool”

In an article published in 2003 in the Revue de Sciences Criminelles (34), Yves Mayaud, a Professor at Panthéon-Assas University, commented on a case in which it appeared that the employer gave his employees instructions by constantly screaming at them, that he accumulated vexations by publicly insulting them, that he resorted to unacceptable methods to humiliate them, and that the work conditions and tempo he imposed on them made them “an extension of a machine tool”. Observing that the employees accepted these working conditions because of their lack of qualifications and the particularly difficult situation of rural employment, especially in the clothing manufacturing sector, and in addition to psychological harassment, the judges found the employer guilty of the offense of submission defined in Article 225-14 of the Criminal Code: “To subject a person whose vulnerability or dependency is apparent or known to the perpetrator, to conditions of work or accommodation that are incompatible with human dignity is punishable by five years of imprisonment and a fine of 150,000 euros”. The text mentions working conditions. Whatever the requirements of the manufacturing process, employees may not be “the extension of a machine tool”. The relationship of subordination does not justify their submission.

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1 Court of Cassation, Social Chamber, March 5, 1986, No. 84-12403
2 Court of Cassation, Social Chamber, May 26, 1983, No. 82-11.739
3 Court of Cassation, Social Chamber, Nov. 4, 1987, No. 85-18,421
4 Court of Cassation, Social Chamber, Oct. 5, 1989, No. 86-15,574
5 Court of Cassation, 2nd Civil Chamber, Dec. 13t, 2005, No. 04-18.104
6 Court of Cassation, 2nd Civil Chamber, May 23, 2007, no. 06-15.011
7 Court of Cassation, Social Chamber, Oct. 10, 2002, No. 01-20.094
8 Court of Cassation, Social Chamber, March 31, 1981, No. 80-11.331
9 Court of Cassation, 2nd Civil Chamber, March 8, 2005, no. 03-30.324 and Court of Cassation, Social Chamber, June 14, 1979, No. 77-41305
10 Court of Cassation, Social Chamber, May 7, 2002, No. 00-14.451
11 Court of Cassation, 2nd Civil Chamber, Sept. 21, 2004, No. 03-30.144
12 Court of Cassation, Social Chamber, Nov. 9, 1965, No. 64-40,592
13 Court of Cassation, Social Chamber, Jan. 23, 1980, No. 78-41,425
14 Court of Cassation, Social Chamber, July 18, 2001, No. 97-42.784; Court of Cassation, Social Chamber, Sept. 26, 2002, No. 01-43.212; Court of Cassation, Social Chamber, Apr. 29, 2003, No. 00-45,685
15 Court of Cassation, Social Chamber, May 22, 1997, No. 99-15,455, Bull. Civ. V, no. 188
16 Court of Cassation, 2nd Civil Chamber, Dec. 13, 2005, No. 04-18.104
17 Jurisprudence sociale Lamy no. 35, May 4, 1999
18 Le droit ouvrier, January 2014, No. 786
19 Court of Cassation, Social Chamber, July 22, 1982, No. 8 0-41.012
20 Court of Cassation, Social Chamber, Nov. 26, 2003, No. 01-43.140
21 Court of Cassation, Social Chamber, Oct. 16, 1996, No. 94-45,593
22 Court of Cassation, Social Chamber, 27th November 1991, No. 88-44110
23 Court of Cassation, Social Chamber October 13, 1982, No. 80-41231
24 Court of Cassation, Social Chamber, April 30, 2014, No. 13-13834
25 Court of Cassation, Social Chamber, July 8, 2009, No. 08-42021
26 Court of Cassation, Social Chamber, May 26, 1998, No. 96-41. 574
27 Court of Cassation, Social Chamber, Jan. 12, 20, 16, No. 14-23,290
28 Court of Cassation, Social Chamber, Oct. 12, 2005, No. 03-43.935
29 Court of Cassation, Social Chamber, March 11, 2006, No. 04-43.687
30 Court of Cassation, Social Chamber, May 13, 1997, No. 94-41.844
31 Court of Cassation, Social Chamber, 22-5-1975 No. 74-40 454
32 Court of Cassation, Social Chamber, 18-5-1977 No. 76-40,582
33 Court of Cassation, Social Chamber, 5-10-1999 No. 3821 D
34 Revue de science criminelle 2003 p. 561

Office et Culture n°49 2018 september