Employment contract: overtime and extra-hours compensation, anticipatory assessment of evidence, and denial of legal aid for a hopeless appeal

Facts

The employee (appellant) had been employed since 1 July 2012 by [B. GmbH] (employer, respondent) as a full-time category B driver. The employer terminated the employment relationship by letter of 27 November 2013, effective 31 December 2013.

By action of 24 February 2017 filed with the Civil Court of Basel-Stadt, the employee claimed Fr. 29'999.-- gross, namely overtime and extra-hours compensation for tour 412 (Fr. 16'600.50) and for additional tours (Fr. 4'543.20). The Civil Court dismissed the action by decision of 1 March 2018.

The employee's appeal to the Court of Appeal of the Canton of Basel-Stadt (three-judge panel) sought Fr. 26'761.85 and legal aid. The Court of Appeal dismissed the appeal and the application by decision of 30 April 2019 (ZB.2018.37). It considered that the contractual working time had been 9 hours per day; tour 412 had lasted at most 9 hours, so no overtime had arisen. The time between the end of unloading and the start of loading had been a break. The additional tours had been driven on the basis of separate oral agreements with a flat-rate remuneration.

By civil law appeal of 11 June 2019, the employee requested that the decision be set aside and that the employer be ordered to pay Fr. 24'608.--, or alternatively that the matter be remitted for clarification of the facts, as well as legal aid including appointment of counsel for the proceedings before the Federal Supreme Court. No responses were requested.

The subject matter before the Federal Supreme Court is: admissibility of the appeal (amount in dispute), scope of the complaint regarding the facts, anticipatory assessment of evidence concerning break time (tour 412) and additional tours, entitlement to overtime and extra-hours compensation, and the denial of legal aid on grounds of hopelessness.

Considerations

Admissibility: The amount in dispute before the lower court was Fr. 26'761.85, thereby reaching the threshold of Fr. 15'000.-- for employment disputes (Art. 74 para. 1 lit. a FSCA, Art. 51 para. 1 lit. a FSCA). The appeal is admissible subject to sufficient reasoning.

Application of law and facts: The Federal Supreme Court applies the law of its own motion but examines only the complaints raised (Art. 106 para. 1 and 2 FSCA, Art. 42 para. 1 and 2 FSCA). Findings of fact can be corrected only in cases of arbitrariness (manifest inaccuracy) or violation of law (Art. 105 para. 1 and 2 FSCA, Art. 95 FSCA, Art. 97 para. 1 FSCA). For complaints about the facts, the strict principle of complaint applies; supplements require precise references to the file.

Anticipatory assessment of evidence: The right to evidence (Art. 152 CPC, Art. 8 CC, Art. 29 para. 2 Cst., Art. 6 ECHR) does not preclude an anticipatory assessment of evidence. An item of evidence may be rejected if it could not shake the court's conviction; this is reviewed only for arbitrariness. The Federal Supreme Court held that the lower court had rightly relied on the witness statements ([C.] , [D.] ) and the letter from [X.] in concluding that the employee had been able to take breaks. The witness statement of [E.] would not have changed this, especially since he had his own financial interest. The alleged evidentiary difficulty changes nothing; it merely leads to easing of the burden of proof. The reasoning for declining the evidence was not arbitrary; the limited investigation principle (Art. 247 para. 2 lit. b no. 2 CPC) does not change this, since the rules of evidence of ordinary proceedings apply (Art. 219 CPC).

Break time and video surveillance: The video surveillance, which the employee did not dispute, is a binding finding of fact in the proceedings. It is not arbitrary to assume that the employee could use the time for his own purposes. Break periods need not grant the same freedom as free time. Tour 412 lasted at most 9 hours; no overtime arose.

Additional tours and flat-rate agreements: The lower court made a binding finding that the additional tours were based on separate agreements with flat rates; it based this on the wage statements (flat-rate amounts correspond to the alleged flat rates), the employee's conduct and the absence of complaints. The written-form requirement for excluding overtime compensation (Art. 321c para. 3 CO) was met, since the signed employment contract referred to the general terms of employment, under which overtime is not paid out. Separate flat-rate agreements for additional work are permissible where overtime compensation is contractually excluded and the working time is shorter than the statutory maximum working time (Art. 9 para. 1 lit. b EmpA). The objection of social…