Termination: receipt & verification
When will a notice of termination sent by registered mail (Einwurf-Einschreiben) be received?
In dismissal protection proceedings, the question of when a letter of dismissal is deemed to have been received is often disputed. According to the decision of the Federal Labor Court of June 20, 2024 (case reference: 2 AZR 213/23), there is prima facie evidence that Deutsche Post AG employees* deliver letters at the usual postal delivery times, which result from the working hours of the mail carrier. This prima facie evidence can be invalidated by presenting atypical circumstances.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
BAG (Federal Labour Court), verdict of 20th June 2024 - 2 AZR 213/23
Facts of the case
The parties are in dispute about the date of termination of the employment relationship. The main issue is the receipt of the employer's ordinary notice of termination. A quarterly notice period to the end of the quarter was agreed in the employment contract. The employer terminated the employment relationship by letter of termination dated September 28, 2021 effective from December 31, 2021. The letter was posted in the plaintiff's letterbox by a Deutsche Post AG mail carrier on September 30 (the employer submitted the proof of posting and the delivery receipt signed by the mail carrier). The plaintiff disputes the receipt of the letter of termination on September 30 during normal postal delivery times. She argues that the letter of termination was not received until October 1, which is why the employment relationship ended on March 31, 2022 - and not on December 31, 2021.
The plaintiff lost in three instances, before the Labor Court, the Higher Labor Court and the Federal Labor Court.
Reasons for the decision
The Federal Labour Court (BAG) determined that the plaintiff received the letter of termination on September 30th and that the employment relationship was terminated as of December 31st, 2021.
When is a declaration of intent (here: termination) received in absentia?
According to the established case law of the Federal Court of Justice and the Federal Labor Court, a declaration of intent in absentia within the meaning of § 130 para. 1 sentence 1 BGB (German Civil Code) as soon as it has come into the recipient's actual power of disposal in a customary manner and the recipient is able to take note of it under normal circumstances. Accordingly, a letter is deemed to have been delivered as soon as the usual emptying of the letterbox can be expected from an objective point of view. Individual circumstances are not relevant (e.g. prevention of actual receipt due to illness, vacation, etc.).
The 2nd Senate has once again confirmed the objective approach of the Federal Labor Court and the Federal Court of Justice that mailboxes are emptied immediately after normal postal delivery times. In the opinion of the Federal Labor Court, the insertion of a registered letter by a Deutsche Post AG employee constitutes prima facie evidence that it was delivered during normal postal delivery times on the day of delivery. The normal postal delivery time is determined by the working hours of the Deutsche Post AG mail carrier, who must effect delivery within the scope of his assigned working hours. The exact time of delivery, which can vary greatly from region to region, is irrelevant. The plaintiff has not shaken the prima facie evidence. She has not presented any atypical circumstances that suggest the serious possibility of a diierent course of events
What is prima facie evidence?
Prima facie evidence applies to typical sequences of events in which, according to general life experience, an established fact points to a certain cause or a certain sequence of events as being decisive for the occurrence of a certain outcome. Prima facie evidence is neither a mandatory rule of evidence nor a presumption of evidence and does not lead to a reversal of the burden of proof. It can be shaken by atypical circumstances if the opposing party presents and proves plausible alternative courses of events
Conclusion & practical tip
Although the decision facilitates the line of evidence for the receipt of notices of termination sent by registered mail, this method is still not a legally secure solution. The delivery receipt issued by the Deutsche Post AG mail carrier only proves that a letter was delivered, does not, however, provide any information about its content. In addition, atypical circumstances may arise during delivery that enable the employee to shake the prima facie evidence. The most legally secure method of proving receipt of a letter of dismissal remains the personal delivery of the letter in the presence of a witness.
Author of this article: Janina Aue, Lawyer & Mediator
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