Facts
The respondent, [B. GmbH] in Liq., with its registered office in Germany, traded in financial instruments. Since 11 June 2011 there had been a branch in [V.] (Switzerland). The appellant was a co-founder and shareholder holding approximately 9% of the shares (the third-largest shareholder), as well as Senior Trader and Senior Portfolio Manager. He was initially employed under a German employment contract, which was suspended during his posting to Switzerland, and from 15 June 2011 under a Swiss employment contract.
Following the resolution to dissolve the company as of 1 January 2014, the employer terminated the Swiss contract effective at the end of September 2013 and released the employee from work as of 1 June 2013. The employee for his part terminated effective 30 September 2013; the validity of this termination was disputed.
On 16 May 2014 the employee sued before the Höfe District Court for various claims, namely bonuses for 2012 and 2013, paid release salary, escrow balance, and overtime, overtime-work and holiday compensation. By partial decision of 30 January 2018, the District Court awarded holiday compensation under the German contract of EUR 10'989.-- gross and dismissed the remaining claims; the 2013 bonus and the escrow balance were assessed separately. On appeal, the Schwyz Cantonal Court set aside only the partial decision concerning the paid release salary and remanded the matter to that extent; otherwise it dismissed the appeal. By civil law appeal, the employee sought annulment of the cantonal court's judgment insofar as the appeal had been dismissed. The Federal Supreme Court dismissed the appeal insofar as it was admissible.
The disputed issues were in particular: the separation of proceedings (Art. 125 lit. b CPC) and the right to be heard; the overtime and overtime-work compensation (Art. 321c CO, Art. 13 LWA, Art. 3 lit. d LWA); the 2012 bonus, including the misvaluation of a listed security and the personalised overhead; the holiday compensation under the Swiss and German employment relationships (Art. 329c, 329d CO); and the admissibility of novae in the reply to the rejoinder (Art. 229 CPC).
Considerations
The civil law appeal against the partial decision is admissible (Art. 91 lit. a FSCA), since the objectively joined claims can be assessed independently. The separation of proceedings under Art. 125 lit. b CPC is a discretionary provision within the court's duty of due exercise of discretion and was permissible on grounds of procedural economy, because only the 2013 bonus and the escrow balance required an extensive taking of evidence. A hearing of the parties before the partial judgment was not required, since the right to be heard generally concerns only facts (iura novit curia) and the appellant had to reckon with the severance.
The lower court did, however, infringe the right to be heard by dismissing the claim for overtime and overtime-work compensation without addressing the applicability of the Labour Act (LWA) and by not dealing with the complaint concerning overtime work. A remittal would, however, be an empty formality, since the Federal Supreme Court can review the decisive findings and these are suitable for assessing the applicability of the LWA.
For senior employees within the meaning of Art. 321c CO, a claim to overtime compensation exists only for additional tasks beyond contractual duties or for general overtime performed by the workforce. Overtime under Art. 12 et seq. LWA with a 25% supplement under Art. 13 LWA is mandatory, but does not apply to employees in a senior executive role of a higher level (Art. 3 lit. d LWA). The decisive factor is the employment relationship as actually carried out, not titles or contractual designations. The lower court was right not to conflate questions of fact and law in an overall assessment; the appellant's complaints about the facts did not satisfy the strict principle of complaint (Art. 106 para. 2 FSCA), because he set his own views against the non-arbitrary findings.
The Federal Supreme Court held that the appellant, as a shareholder holding 9%, with independent activity, influence over the bonus arrangements and the establishment of the branch, a position of trust and income strongly dependent on performance, exercised a higher senior executive role within the meaning of Art. 3 lit. d LWA and Art. 9 OLA 1. He is therefore excluded from the protection of the overtime rules; accordingly, there is also no claim to overtime compensation as a senior employee under Art. 321c CO, since no fixed working time had been agreed.
As regards the 2012 bonus, the complaints failed: the misvaluation of the listed security in the annual financial report had no effect on the bonus…