No holiday for the boss

No holiday for the boss

"I run a business in the form of a limited company. I'm the only member of the board of directors. During my holidays, the business was closed. On my return, when I went to collect all my mail from the post office, I was in for a nasty surprise: a decision by the authorities for allegedly breaching labour law, and the 10-day period for objecting had already expired. Why is the report addressed directly to me, and can I still object to it?

Gilbert, Geneva

The Board of Directors, the governing body of a public limited company, represents the company in dealings with third parties. If the Board consists of only one person, case law accepts that this person necessarily has the power to represent the company, notwithstanding any restriction in the Commercial Register. You therefore have the legal capacity to perform and undergo acts in the name and on behalf of your company. You are also likely to incur the company's liability in tort. However, for this to be the case, the unlawful act must have been carried out within the scope of your corporate powers and in the name of your business.

There are several plausible and not necessarily legal explanations for the fact that your name and not that of the company appears on the report, for example if the employment contract names you as the employer. It is also possible that the report was made against you. A third possibility is simply that you represent the company in dealings with third parties. However, if you acted on behalf of the company when the problematic contract was concluded, it is the company that is at issue and not you.

In principle, an objection to a decision by the authority must be lodged within the time limit set, failing which the right is lost. However, a late objection may be accepted if the objector can prove that the delay was not due to his or her own fault, but to force majeure, i.e. an external and extraordinary event whose occurrence is outside the sphere of activity of the person concerned and cannot be foreseen. In this respect, holidays do not constitute force majeure. The authorities may also derogate from this rule when the formalism would be excessive, i.e. when no interest worthy of protection justifies it and it inadmissibly hinders access to the courts and thus prevents an individual from asserting his or her rights. If you dispute the facts on which the report is based, you should therefore write to the competent authority as soon as possible, explaining that you were unable to find out about the report until late in the day because the business was closed and your post was held up at the post office, but you should be aware that your chances of being allowed to act outside the time limit are very slim.