Facts

Parties and subject matter: The plaintiff and appellant ([A.] ) worked from 1 January 2011 to 31 October 2016 as a delegated psychotherapist for the defendant and respondent ([B.] ), a specialist in psychiatry/psychotherapy and general medicine with his own practice premises in [U.] . The subject matter of the dispute is the legal qualification of the contractual relationship (employment contract within the meaning of Art. 319 ff. CO).

Contractual basis: On 3 November 2010 the parties signed an agreement designated as an 'employment contract' as well as the document 'Regelungen und Gedanken für die Zusammenarbeit in delegierter Psychotherapie in der Psychiatrisch/Psychotherapeutischen Praxisgemeinschaft Dr. [B.] '. On 22 July 2016 the defendant terminated the contract, observing the three-month notice period, effective 31 October 2016.

Procedural history:

  • Action of 2 June 2017 before the Labour Court of Zurich, seeking payment of the share of the pool account (CHF 31'457.35) and holiday pay (CHF 28'842.60), each plus 5% interest from 30 October 2016.
  • Judgment of the Labour Court of 29 April 2019: qualification as an employment contract, action largely upheld (CHF 57'255.35 net plus interest from 31 October 2016).
  • Judgment of the Obergericht of the Canton of Zurich, I. Civil Chamber, of 23 December 2019 (LA190021-O/U): the defendant's appeal upheld, contractual relationship not qualified as an employment contract, action dismissed.
  • Civil law appeal to the Federal Supreme Court with the principal request for payment of CHF 57'255.35 plus interest, and the subsidiary request for remittal.

Background of delegated psychotherapy: Self-employed non-medical psychotherapists are not authorised to provide services at the expense of the mandatory health insurance. The costs of delegated psychotherapy are, however, covered if the treatment is provided by a psychotherapist employed by the physician, in the physician's practice premises, under the physician's supervision and responsibility, and the treatment is delegable. An 'employment relationship' with material legal or factual subordination and economic dependence is required; an employment contract under Art. 319 ff. CO is, however, not mandatory for the reimbursement obligation.

Undisputed findings: The parties agreed that the plaintiff deliberately wished to enter into an employment relationship as a delegated psychotherapist in order to be able to bill her services through basic insurance. She worked in the practice for five years, took several weeks of holiday per year, could organise her working hours freely, was not required to perform target hours and had no entitlement to patient referrals. She bore the social insurance contributions including occupational pension (OPA), fees, insurance costs and a large part of the infrastructure costs; the defendant received 5% of her turnover. No base salary was agreed; the remuneration varied depending on the patients treated. There was no non-compete obligation; she could bill private patients directly in the practice against payment of rent.

Complaints of the appellant: Misjudgment of the health insurance law model, presumption in favour of an employment relationship, circumvention of the law, incorrect assessment of the right to give instructions, working time and fixed costs (de facto work obligation), misjudgment of economic dependence, erroneous consideration of entrepreneurial risk and remuneration. She partly relied on factual elements that had not been established.

Considerations

The civil law appeal is admissible insofar as the appellant substantiates her complaints adequately. The Federal Supreme Court bases its decision on the facts established by the prior instance (Art. 105 para. 1 FSCA); a complaint regarding the establishment of facts is subject to the strict principle of complaints (Art. 106 para. 2 FSCA). The appellant partly relied on her own presentation of facts and on passages that had not been established, which therefore remain unconsidered.

The qualification of the contract is a question of law which the Federal Supreme Court reviews freely. The decisive factor is initially the consistent actual intention of the parties or the principle of good faith (Art. 18 para. 1 CO). Subsequently the contract must be legally classified; the judge is not bound by the parties' qualification, and the designation as an 'employment contract' is not decisive, although it may be an indication. An employment contract is characterised by work performance, remuneration, subordination (personal, operational, temporal and economic subordination) and a continuing obligation. The distinction from a mandate is made on the basis of material criteria such as the right to give instructions, integration, regulation of working time and place, work equipment, regular remuneration, entrepreneurial risk and economic dependence; the overall assessment of the individual case according to the standard of general perception is decisive.

The Federal Supreme Court holds that, for the reimbursement obligation, a relationship of subordination is indeed required, but an employment contract under Art. 319 ff. CO is not mandatory. Therefore there is no circumvention of the law, and there is no presumption in favour of an employment contract; rather, each agreement must be qualified individually.

According to the undisputed findings, the motive for concluding the contract was not the establishment of a genuine employment relationship, but the possibility of billing through basic insurance and thus a pecuniary interest in a larger patient base. The right to give instructions was minimal: the agreement contained essentially general framework rules (cost participation, documentation, archiving, emergency procedure) which ensured basic organisation and secured the billing requirements; individual instructions on treatment procedures or on daily work were absent. Providing the practice premises is an indication of integration, but it is relativised by the…