Employers regularly give notice to their employees by registered mail. In this case, however, the employer runs the risk of not being able to prove receipt of the notice as soon as the employee simply claims in an unfair dismissal case that he or she never received the notice. If the employer does not succeed in proving that the employee actually received the notice of termination, the notice of termination is treated as non-existent and the employment relationship continues
In the following, the legal situation regarding prima facie evidence in the case of registered mail and its significance for the employer, as well as which alternative possibilities for the delivery of a notice of termination come into consideration
What is at stake?
A notice of termination sent by registered mail is treated as a so-called declaration of intent vis-à-vis absent persons pursuant to section 130 (1) sentence 1 of the German Civil Code (BGB). According to this, the notice of termination becomes effective at the time it is actually received by the employee. This is the case if it has reached the recipient’s sphere of influence in such a way that he or she can take note of it and can be expected to take note of it under normal circumstances.
If the employeedisputes the receipt of the notice of termination in a possible unfair dismissal action by claiming not to have received the registered letter, the employer must show and prove that the notice of termination was delivered to the employee and was actually received.
Although the so-called posting receipt on which the registered letter is based shows that the notice was posted at the post office, it does not show that the notice was delivered and thus possibly received by the employee. However, registered letters are deposited in the recipient’s mailbox with the daily mail, whereby the posting is documented by the employee of Deutsche Post AG with an exact date and time in a so-called delivery receipt .
If, in addition to the posting receipt, the employer also submits the (reproduced) delivery receipt for the item number of the posted letter, it is now predominantly held in case law that this interaction of posting and delivery receipt establishes the prima facie case that the notice of termination was delivered to the employee.
This means that it is no longer the employer who bears the burden of proof for the receipt of the notice of termination, but the employee must present and, if necessary, prove facts that justify the possibility of a different (atypical) course of events in the individual case. However, proof to the contrary is not required.
What is the legal situation?
It is disputed whether the posting receipt together with the reproduction of the delivery receipt establishes prima facie evidence that the notice of termination was received by placing it in the letterbox.
The predominant opinion in case law assumes that if a registered letter is sent by post, there is prima facie evidence that it was received, and that there is at least a strong circumstantial effect if, in addition to the proof of posting, the proof of delivery of the item or the reproduction of the delivery receipt is also available. the reproduction of the delivery receipt is submitted(LAG Rostock 12.03.2019 – 2 Sa 139/18, LAGE § 130 BGB 2002 No. 11; OLG Saarbrücken 20.03.2017, 68; LAG Mecklenburg-Vorpommern 12.03.2019 – 2 Sa 139/18; LAG Schleswig-Holstein 18.01.2022 – 1 Sa 159/21; LAG Rheinland-Pfalz 17.09.2019 – 8; Sa 57/19; LAG Hamm 05.08.2009 – 3 Sa 1677/08). The prerequisite is that the consignment number on the posting or delivery receipt is identical, the name of the employee of Deutsche Post AG who posted the registered letter in the letterbox is listed and that he or she signed the receipt by hand.
According to older case law, the delivery receipt merely documented that the person signing it had created a delivery receipt. According to the Mecklenburg-Vorpommern Regional Labour Court(judgment of 12 March 2019 – 2 Sa 139/18), this case law is outdated in view of the more recent case law of the Federal Supreme Court(BGH 27 September 2016 – II ZR 299/15 – NJW 2017, 68 margin no. 33). According to this case law, in the case of a registered letter sent by post, after presentation of the posting receipt together with the reproduction of the delivery receipt, the sender has prima facie evidence that the item was delivered by placing it in the letterbox or post office box. This was indeed decided for section 21 (1) GmbHG. However, the Mecklenburg-Vorpommern Higher Labour Court (LAG Mecklenburg-Vorpommern) is of the opinion that this case law is transferable to the disputed receipt of an employer’s notice of termination by the employee.
In theabsence of evidence that there was negligent or intentional misconduct in the production of the delivery receipt when the notice of termination was delivered, there was also no reasonable reason to doubt that the employee of Deutsche Post AG, as certified by form in the document, delivered the item with the consignment number designated therein.
The mere reference to the fact that the employee never received the notice of termination is not relevant, since it is sufficient for the notice of termination to have been received if the item was placed in the letterbox. Whether the recipient of the consignment took the consignment from there and then actually took note ofit is irrelevant.
If the employee wants to shake the prima facie evidence of receipt of the notice of termination, he has to get closer to the letterbox at his home in the sense that registered mail is frequently received through the letterbox and that no item has ever been lost because the letterbox is regularly and reliably emptied.
Alternative delivery options
(1) Personal delivery
In addition to the postal delivery of a notice of termination, a personal delivery of the original notice of termination to the employee at the workplace may be considered.
The receipt of the notice should be confirmed by the employee’s signatureon a copy of the notice. If the employee refuses to sign, the handover of the notice should be documented in a protocol. This should show who handed over the notice, when, where and with whom.To be on the safe side, a witness should be called in who can confirm both the handover and the content of the protocol.
(2) By messenger
If it is not possible to hand over the notice in person at the workplace, it can be handed over at the employee’s place of residence by messen ger or dropped into the employee’s letterbox.
The decisive factor is that the messenger (e.g. employee or external messenger service) has seen the original signed notice and can testify that the notice was placed in the envelope which the messenger handed over to the employee at the employee’s place of residence or dropped in the letterbox. For proof of receipt, the messenger shall draw up a record that he was present when the original notice was placed in the envelope and when and where he handed over/inserted the notice.
(3) Simple letter
In the case of a simple letter delivery, the notice is placed in the employee’s letterbox.
There is a considerable risk that the receipt of the notice by the employee cannot be proven with legal certainty. There is also no presumption in favour of the employee that the notice has been received, since it is not improbable according to general life experience that letters are lost in transit.
(4) Delivery by registered letter (with advice of receipt)
By means of a handover registered letter (with advice of receipt) the notice of termination is handed over to the employee only against his signature . If the employee cannot be found at the time of delivery or refuses to sign, Deutsche Post AG shall hold the item ready for collection within a period of 7 working days, beginning on the day following the attempted first delivery. A notification slip shall be left in the employee’s letterbox that a registered mail item is available for collection from the post office.
The problem with this variant is that receipt is only effected with the signature of the employee . If the employee does not collect the item because, for example, he or she expects to be dismissed, this is at the employer’s expense. There is also no obligation on the employee to collect the letter. In this case, the notice of termination is not received.
(5) Registered mail
As soon as the employer sends the notice of termination by registered mail to Deutsche Post AG, he receives a deposit receipt st ating when he placed the order. Delivery is then made by posting it in the house letterbox with the daily post and is documented and signed by the Deutsche Post AG employee, stating the date and time on the delivery receipt belonging to the item number.
According to recent case law, the proof of posting together with the (reproduced) proof of delivery constitutes prima facie evidence that the item was delivered by placing it in the letterbox, provided that the delivery procedure was properly carried out and recorded. However, prima facie evidence is merely an indication of actual delivery, which the employee can shake by making a corresponding submission.
However, if the employee does not (only) dispute the receipt of the notice, but also that the registered letter was the notice, the employer must, despite the prima facie evidence, show and prove that the registered letter sent to the post office was the original notice.
This fact is also not apparent from the interaction of the posting and (reproduced) delivery receipt, since it can only be proven that the employee was served with any document and not necessarily the notice of termination.
Recommendation
The most legally secure way of proving receipt of the notice of termination is to hand the original notice of termination personallyto the employee at the workplace with the assistance of a witness.
If this is not possible, it is advisable to commission a messenger with the delivery, as in this case not only the delivery of any letter can be proven, but also that the original notice of dismissal has been sent without any doubt. The fact that the notice of termination must be in the original is derived from section 623 of the German Civil Code, according to which the notice of termination must be in writing, i.e. handwritten and signed by the employer. A copy or a scan of the notice with the original signature is not sufficient, as it is only a copy of the original notice(exception to the written form requirement: “qualified electronic signature“).
With both variants, it is possible for the employer to prove when the notice of termination was received by the employee and also that the document was clearly the original notice of termination.