A surgeon who rented a box inside the company's premises, issued invoices through a professional partnership, and charged according to the consultations she performed —without complaining to the Labor Inspectorate for years— failed to obtain judicial recognition of an employment relationship. The Concepción Court of Appeals rejected, with costs, the nullity appeal filed by the plaintiff and upheld the judgment of the Labor Court of Los Ángeles that had dismissed the claim.
The ruling applies article 7 of the Labor Code with precision: if the element of subordination and dependence is missing, there is no employment contract. And it makes clear that the time elapsed under a civil scheme, far from transforming it into an employment one, operates against whoever later seeks to characterize it as such.
What happened
The relationship between the parties ran from April 1, 2016 to December 1, 2022, through successive fee-based service contracts signed and performed without challenge. The Labor Court of Los Ángeles dismissed the claim for declaration of an employment relationship and, as a result, also rejected the complaint of violation of fundamental rights on the occasion of the dismissal. The plaintiff then filed a nullity appeal before the Concepción Court of Appeals, which rejected it with costs.
The appeals court analyzed the elements proper to an employment contract under article 7 of the Labor Code: provision of personal services, remuneration and, centrally, subordination and dependence. This last element —expressed through the direction and control the employer exercises over the worker— was absent. The Court particularly bore in mind that the plaintiff practiced as a surgeon, a profession that entails autonomous action inherent to clinical judgment, and that strict hierarchical or disciplinary control was not proven. To this it added that she rented a box inside the defendant company's premises and received variable income according to the volume of consultations she performed, which the Court expressly declared incompatible with the fixed remuneration of a typical employment relationship.
To this it added a second, equally relevant basis: the doctrine of one's own acts (estoppel). The plaintiff had the opportunity to complain to the Labor Inspectorate and did not do so for several years. The Court concluded that "the plaintiff's conduct was consistent with a civil relationship for years, with the doctrine of one's own acts operating, since she did not complain to the Labor Inspectorate nor challenge the contracts while they were favorable to her."
The rule is clear: the prolonged duration of a civil relationship does not turn it into an employment one. Whoever behaves as a party to a civil relationship cannot later invoke the primacy of reality to recharacterize it, if their own conduct sustained that framework for years.
What it may mean for your company
This ruling matters if your company works with people who provide services autonomously, rents spaces within its facilities to third parties, or pays based on output, consultations, or results —without a fixed monthly payment. Courts examine the whole set of facts, not the contract's label. But they also examine the parties' historical conduct.
The determining element remains subordination and dependence. If the provider sets their own schedule, receives no instructions on how to perform the service, assumes the economic risk of their activity, and sets their fee or income according to their own output, the relationship will hardly be an employment one even if there is a stable and prolonged commercial relationship.
There is, however, a gray area the ruling does not fully clear up: when does integration into the employer's premises or the use of its facilities begin to constitute dependence? The judgment does not establish a generic threshold. The analysis is always case by case. What it does set with clarity is the standard of variable income as an indicator of the absence of employment remuneration, and the provider's passive conduct before the authority as an element that consolidates the civil characterization.
On the opposite side: if your company controls the work schedule, gives concrete instructions on how to provide the service, demands presence and availability, or integrates the provider into the company's chain of command, the risk of recharacterization as an employment contract is real —regardless of how the contract is drafted. The primacy of reality applies in both directions.
A poorly structured civil contract, combined with a performance that reflects direction and control, can result in a judgment declaring the existence of an unrecognized employment relationship and triggering the payment of unpaid contributions, severance, and retroactive social benefits.
Would your fee-based contracts withstand a primacy-of-reality examination? Schedule a session to contrast what your contracts say with how they are performed in practice.
What you can do
- Audit the service contracts in force. Review whether the conditions of performance —schedule, place, form of supervision, remuneration system— are consistent with what the contract states. If the facts contradict the text, the risk is active.
- Document the provider's autonomy. If the relationship is genuinely civil, build a record that proves it: communications about availability, absence of operational instructions, invoices issued by the provider, verifiable variability of income according to output. The Court valued these indicators.
- Review the space-rental schemes within your facilities. If people who rent space on your premises provide services to your clients, the legal structure of the relationship —both the lease and the services contract— must be reviewed so that it is consistent with the actual autonomy they have.
If any of these points raises questions —supervision, the payment system, or the leases within your premises— a 30-minute diagnostic session is enough to size up your gaps. Schedule here.
If you need to assess whether your company's service contracts show indicators of subordination or to review the structure of your civil relationships with independent providers, schedule a diagnostic meeting with our team.
This content is informational and does not constitute legal advice.