German Federal Labor Court Ruling Facilitates Presentation of Evidence When Notice of Termination Is Served by Registered Mail

Quick Hits

• Germany’s Federal Labor Court held that posting a termination letter in a mailbox constitutes receipt as soon as the subsequent removal is expected, which the court said would be the day of posting.
• Employers that use registered mail for delivering employment termination notices may want to obtain proof of delivery immediately and routinely.
• Personal delivery, accompanied by thorough documentation of the entire process, provides greater legal certainty.

Receipt on the Date Noted on the Delivery Document

The employer and former employee had an employment contract including a provision stipulating quarterly notice periods. In a letter dated September 28, 2021, the employer gave notice of termination at the end of the year. The letter was delivered by registered mail, and the delivery receipt was dated September 30, 2021.

If receipt were proven with the posting of the registered letter, the employment relationship would end on time at the end of 2021. The former employee disputed the posting of the letter within the usual postal delivery times, arguing that one could not expected it to be removed from the mailbox on the same day. The letter was therefore received late on October 1, 2021.

The BAG ruled in favor of the employer. The former employee received the employment termination letter on September 30, so the letter complied with the notice period stipulated in the employment contract. Posting a letter in a mailbox constitutes receipt as soon as the subsequent removal is expected, according to the prevailing opinion. Also, according to the BAG, there is now so-called prima facie evidence that letters are delivered within the usual postal delivery times. In general, employers can expect that the mailbox will be emptied immediately after the end of normal mail delivery times—therefore, on the same day.

In future labor court proceedings, prima facie evidence of receipt of a declaration sent by registered mail on the day a registered letter was posted can be provided with the (electronically reproduced and retrievable) delivery note. However, if the employee presents atypical circumstances in the specific individual case that suggest the serious possibility of a different course of events, this prima facie evidence could be dispelled.

Other Methods of Delivery Provide More Certainty

This decision means that there are fewer risks associated with registered mail delivery, which is popular in practice. It is important to retrieve the proof of delivery immediately and routinely. However, acknowledging prima facie evidence does not obscure the fact that other delivery methods provide more legal certainty.

In the case of a registered letter, there is only evidence of receipt of the envelope, not the contents of the envelope. To confirm that an employee received the termination notice, a witness must be consulted throughout the entire process of issuing the declaration, dispatch, and tracking the shipment, with each step documented accordingly.

The most legally secure solution, therefore, is the personal delivery of a notice of termination on the company premises, accompanied by witnesses, or, alternatively, the confirmation of receipt of the notice of termination by the employee on a form for this purpose. If personal delivery is not feasible or not desired, employers may want to assign an employee to deliver the notice to the employee’s home address and ensure the delivery—including the content of the declaration—is verified with comprehensive documentation.

Alternatively, delivery service can be carried out by a bailiff or an external messenger or courier service if each offers sufficient documentation. However, the prices for courier delivery can quickly run into the three-digit range, and bailiffs often offer only limited time slots when they can effectuate delivery.

Key Takeaways

It is now easier to prove receipt of a declaration by registered mail, but this does not replace the legal certainty of handing over or posting under witness for the content of the declaration.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will provide updates on the Employment Law blog as additional information becomes available.

Photo: shutterstock / H_Ko