Registered Letter Sent by ‘Deutsche Post’ Doesn’t Provide Evidence of Receipt of Letter, Hamburg LAG Rules

Quick Hits

• Registered mail is not prima facie evidence of receipt of a letter, the Hamburg Regional Labor Court recently ruled.
• After renewed illness, employers must enable employees to undergo a workplace integration management program.

The Case—Reintegration of an Employee on Long-term Sick Leave

The dispute concerned the validity of a dismissal due to illness. The employer had sent the frequently ill employee an invitation to participate in the employer’s new workplace integration management program (bEM) by registered mail. The employee alleged that he had not received the letter.

The Decision—Dismissal Due to Illness Invalid Despite Negative Health Prognosis

The Hamburg Labor Court ruled in the first instance that the dismissal was invalid because the employer could not prove that the employee had received the bEM invitation. Without formal invitation, the employee was cut off from the opportunity to participate in the bEM, meaning that the employer’s negative prognosis for the future was open to challenge. Ordinary dismissal was therefore not the mildest measure.

The Hamburg LAG confirmed the ruling. Although a negative health prognosis and a significant operational impairment could be established, the employment termination was disproportionate if the employee had not received a new bEM invitation.

This was also the case here. The employer was unable to demonstrate or prove that a renewed bEM procedure would not have prevented the employee’s incapacity to work to continue.

Simply presenting the delivery and return receipt was not sufficient to provide prima facie evidence that the employee had received the bEM invitation. The following standard delivery procedure at “Deutsche Post” was decisive:

1. the postal employee scans the letter,
2. signs on the input field of his scanner, and
3. then puts the letter in the mailbox.

According to the court, there is no typical sequence of events that could constitute prima facie evidence. It is possible that the mail carrier is holding several letters at the same time and/or is distracted during delivery. In this context, it is not typical to drop a letter into the right mailbox immediately after scanning it.

The LAG therefore rejected prima facie evidence. The ordinary termination was invalid.

Key Takeaways

Termination due to illness depends not only on the negative health prognosis and the significant operational impairment, but also on whether the employer has invited the employee to participate in a bEM.

When sending important letters, such as termination letters, employers may want to note that the “Deutsche Post” delivery and return receipt is generally not sufficient as prima facie evidence of receipt. Employers may want to deliver the letter in person or have it delivered by a bailiff or courier, which is generally considered reliable proof of receipt in court.

Karl Melzer is an associate in Ogletree Deakins’ Berlin office.

Pauline von Stechow, a law clerk in Ogletree Deakins’ Berlin office, contributed to this article.

Ogletree Deakins’ Berlin and Munich offices and Cross-Border Practice Group will continue to monitor developments and will post updates on the Cross-Border and Germany blogs as additional information becomes available.