In its judgement of 30 January 2025 (case no. 2 AZR 68/24), the Federal Labour Court ruled that the proof of posting and the status of a notice of termination sent as a registered letter are not suitable for establishing prima facie evidence of receipt of a notice of termination.
Background
The parties are in dispute about the validity of a termination by the defendant in a letter dated 26 July 2022.
In this letter, the defendant terminated the employment relationship with the plaintiff, which had existed since May 2021, for cause or, alternatively, with notice to 30 September 2022. The plaintiff disputes receipt of the letter dated 26 July 2022.
The defendant considers the dismissal to be effective because the plaintiff did not challenge it within the period stipulated in Section 4 sentence 1 KSchG. Two employees of the employer had jointly placed the letter of termination dated 26 July 2022 in an envelope. One of the two employees then took the envelope to the post office and posted it there personally on 26 July 2022 at 3:35 p.m. as a registered letter with the consignment number RT. The so-called consignment status available online showed that the letter had been delivered to the plaintiff on 28 July 2022. In this respect, there is prima facie evidence that is not shaken by the plaintiff’s blanket denial. This is not contradicted by the fact that the defendant can no longer present the copy of the delivery receipt. The defendant did not request the delivery receipt from Deutsche Post AG within the retention period of 15 months, with the result that the receipt was destroyed after the period had expired.
The decision of the BAG
The BAG ruled that the employment relationship between the parties was not terminated by the defendant’s termination of 26 July 2022.
An embodied declaration of intent between absentees is received as soon as it has come into the recipient’s actual power of disposal in a customary manner, for example in a letterbox, and it is possible for the recipient to take note of it under normal circumstances.
The defendant bears the burden of presentation and proof that the plaintiff received the cancellation.
The defendant has not offered any proof that the plaintiff received the notice of termination. Furthermore, there is no prima facie evidence in favour of the defendant that the letter of termination was received by the plaintiff.
For prima facie evidence that the letter was actually received by the plaintiff, it is not sufficient that the defendant submitted the proof of posting of a registered letter, which shows the date and time of posting as well as the post office and the consignment number.
Instead, the BAG ruled that without the submission of a reproduction of the delivery receipt, no prima facie evidence of receipt by the recipient can be established, as information about the person of the postal employee who posted the letter and further details of the delivery cannot be provided. The defendant was no longer able to submit the delivery receipt here because it had not requested it within Deutsche Post AG’s retention period of 15 months.
The BAG found that the status of the consignment and the proof of posting are not suitable for proving who delivered the consignment and at what time, to whom and at what address the consignment was supposed to have been delivered.
Conclusion
With this judgement, the BAG emphasises that the proof of receipt of a notice of termination must meet the highest standards. The BAG ruled that the proof of posting and the dispatch status of a registered letter are not suitable to prove the receipt of a notice of termination. Proof of delivery of a notice of termination by registered letter can only be provided with legal certainty by presenting the proof of delivery.
Practical advice
This judgement illustrates the importance of conscientious preparation and delivery of a notice of termination.
Employers are advised to review their procedures when giving notice of termination to ensure that they use procedures that enable complete and directly traceable documentation. Preferably, a notice of termination should be delivered personally by a messenger who can act as a witness to the delivery.