Admissibility of an appeal against the procedural referral to ordinary proceedings in the case of a negative declaratory counterclaim; approval and remittal

Facts

Parties and instances: The appellant ([A.] , employee) and the respondent ([B. AG] , employer) are in dispute before the Labour Court of Bülach over wage claims, a certificate of employment and the surrender of a notebook. The prior instance was the Higher Court of the Canton of Zurich, I. Civil Chamber.

Course of proceedings: On 10 October 2019 the appellant filed an action for claims of CHF 9'781.-- plus interest (amount in dispute CHF 16'389.35). In its statement of defence of 7 January 2020 the respondent requested dismissal and filed a counterclaim in the form of a negative declaratory counterclaim, according to which there were no overtime claims of CHF 17'560.65 (2017) and CHF 36'237.25 (2018) and the debt enforcement for CHF 45'650 was to be set aside.

Type of proceedings: The respondent requested treatment in ordinary proceedings, or referral to the collegiate court. On 9 April 2020 the single judge referred the dispute to the collegiate court based on § 25 GOG/ZH (not on Art. 224 para. 2 CPC); this order was not challenged.

Contested order: The appellant requested an interlocutory decision under Art. 237 CPC on the admissibility of the counterclaim and the type of proceedings. By order of 10 July 2020 the Labour Court declined to consider this request and referred the actions to ordinary proceedings; the question of the admissibility of the counterclaim was to be addressed in the final decision.

Cantonal appeal: The appellant challenged this with the request that the counterclaim not be admitted and that the action be kept in simplified proceedings; in the alternative, that the Labour Court be directed to issue the interlocutory decision. By decision of 17 September 2020 the Higher Court declined to consider the appeal, as it concerned a procedural management order that could only be challenged where there was a threat of harm that was not easily remediable (Art. 319 lit. b no. 2 CPC), which it denied.

Requests before the Federal Supreme Court: The appellant requested that the Higher Court's decision be set aside, that the counterclaim not be admitted, and that the action be directed to be handled in simplified proceedings; in the alternative, remittal to the Labour Court, and in the further alternative, remittal to the Higher Court. The prior instance waived a response; the respondent requested dismissal.

Considerations

Admissibility of the appeal: The Higher Court decided as the last cantonal instance (Art. 75 FSCA). The amount in dispute exceeds CHF 15'000.-- (Art. 74 para. 1 lit. a FSCA). The contested decision is a preliminary or interlocutory decision under Art. 93 FSCA. Under Art. 93 para. 1 lit. a FSCA, an appeal is only admissible if a non-remediable disadvantage of a legal nature threatens; purely factual disadvantages such as prolongation or increased cost of proceedings are not sufficient. According to case law, choosing the wrong type of proceedings may bring about such a disadvantage.

Type of proceedings in the case of a negative declaratory counterclaim: Under Art. 224 para. 1 CPC, a counterclaim may only be filed if it is subject to the same type of proceedings as the principal action. A counterclaim exceeding CHF 30'000.-- would in principle not be admissible in simplified proceedings (Art. 243 para. 1 CPC). An exception applies where the defending party, in response to a genuine partial claim, files a negative declaratory counterclaim (BGE 143 III 506); the Federal Supreme Court has clarified this to cover cases in which the partial claim creates an uncertainty that justifies a declaratory action within the meaning of Art. 88 CPC (BGE 145 III 299).

Purpose of simplified proceedings: Simplified proceedings are intended to offer an expedited legal route for cases with a smaller amount in dispute, in particular in social private law (BGE 146 III 297). They differ from ordinary proceedings through simplified forms, extensive oral procedure and judicial assistance (Art. 246 para. 1 CPC).

Disadvantage to the appellant: The Labour Court's approach forces the appellant to engage with the counterclaim before its admissibility has been clarified, and to conduct her…