Among business litigation, the absence of formalization is a great classic. Julien Gasbaoui, lawyer devoting his activity to criminal business law and the defense of accounting professionals, alerts growing companies to the need to organize the delegation of powers.
The case is recurring : a company develops and the manager, who was initially on all fronts, delegates certain tasks as recruitment occurs. Management is carried out in an informal mode : " It's better, faster, and then… everyone knows each other within the structure ! » Everything is going well then, until the day a difficulty arises, which can be of several orders : we discover that hygiene or safety standards are not respected (often following an accident resulting in injury, even death – especially in the construction or transport sector), that part of the production is counterfeit, or that employees were recruited under questionable conditions. In other words, crimes exist within the company and the manager, who ignored them, will be the first suspect. The same causes leading to the same effects, the great classic continues. Interviewers will ask simple questions, but the answers, they, will never be. Job descriptions do not really correspond to what employees say about their daily lives, training is not always adequate, dates are imprecise, and, Above all, the manager has not formalized anything. The latter will then trumpet that he was no longer physically present on the construction sites, that he had no longer been interested in the disputed activity for years, nothing will do.
Only the formalization of the delegation protects the manager
Indeed, according to the criminal chamber of the Court of Cassation, and, in view of the importance of a company, the manager cannot personally manage all sectors of activity of the company, he will only be exonerated on the condition of course that he has not personally taken part in the offense, but above all to provide proof that he has delegated his powers to a person with the necessary competence, the authority and necessary means. This is why lawyers and accountants must advise their corporate clients to anticipate, and propose to them the drafting of a delegation of powers which, duly dated and signed, will remain the best proof of the existence and effectiveness of the delegation granted. In most of the cases, two or three correctly written pages can save the manager from criminal prosecution with serious consequences.
A short piece of writing with simple words
Knowing the employee well doesn't change anything., the fact that he is loyal either. Faced with pressure from a judge, managers systematically tend to defer to their employees ; which will turn out to be totally in vain. The risks are real and a fine, to suspended prison sentence, or even a ban on managing, can compromise a career. The following questions should be asked and discussed. Who does what within the company ? Do the job descriptions correspond well to this function? ? Does the person concerned have the skills, Training, experience and remuneration to be delegated this or that function ? It will be a question of taking up all these reflections in a short writing, in simple terms, avoiding imprecise delegations (the adverb “in particular” should be avoided : we must precisely know what responsibilities the manager has delegated to the employee) ; too broad delegations (a manager remains the main person responsible and the employee, same serious and competent, is not intended to become a de facto leader) ; delegations too short (all delegated functions must be included)
