Update Employment Law October 2023
On the delivery of notices letters and the proof thereof – tackling a regular problem occurring in day-to-day HR work
LAG Nuremberg, judgment of June 15, 2023 – case no. 5 Sa 1/23
In its judgment dated June 15, 2023 (case no. 5 Sa 1/23), the Nuremberg Regional Labor Court ruled that in the case of a letter of termination by registered mail (‘Einwurf-Einschreiben’), the so-called ‘prima facie evidence’ speaks for the receipt of the letter by the recipient, provided that the sender submits the proof of posting the registered mail and the delivery receipt with the signature of the mailman.
The background to the decision is the written form requirement in Germany. Every termination of an employment relationship must be declared in writing. This not only means that the notice of termination must be in writing in some form, but must actually be signed by hand with pen on paper (wet ink on paper!). The original with the signature must then be handed over to the employee. In principle, the employer must provide full proof of receipt of the original by the employee, which can cause considerable problems in practice. The decision of the Nuremberg Regional Labor Court deals with the delivery of a notice of termination by so-called registered letter – a letter in which the mailman confirms that he has put it in the mailbox of the recipient – and the subsequent proof of receipt of such a registered letter by the employer in court proceedings.
The parties were in dispute over the time of receipt of an ordinary notice of termination. The plaintiff, who was born in 1986, had been employed by the defendant as a dentist since April 1, 2021 with a quarterly gross income of EUR 30,272.70. A quarterly notice period to the end of the calendar year quarter had been agreed in the employment contract. By letter dated September 28, 2021, the employer and defendant terminated the employment relationship with effect as of December 31, 2021, which was delivered to the plaintiff – according to the proof of delivery of the mailing service provider – dated September 30, 2021.
On October 13, 2021, the plaintiff filed a lawsuit with the Nuremberg Labor Court arguing that the employment relationship had not been terminated as of December 31, 2021, but only as of March 31, 2022, as the notice of termination had only been received in October.
The Nuremberg Labor Court dismissed the lawsuit (Nuremberg Labor Court, judgment dated November 23, 2022 – case no. 4 Ca 4439/21). The plaintiff has appealed against the judgment to the Nuremberg Higher Labor Court.
The appeal was also dismissed.
It argued that it was sufficiently established that the plaintiff had already received the notice of termination on September 30, 2021, thus terminating the employment relationship as of December 31, 2021. In addition to the reasons given by the court a quo, the Regional Labour Court argued that the so-called prima facie evidence of receipt by the addressee applies if the letter of termination was sent by registered mail and the sender (usually the employer) presents
- the proof of posting the letter and
- the delivery receipt with the signature of the mailman.
It also stated that prima facie evidence of receipt of the letter at the time of the usual postal delivery times on the date of the delivery receipt was also given. If the delivery was made by an employee of the mail service provider censored in the publication – probably the state-owned mail service provider Deutsche Post AG – and not by another mailing service provider, it could generally be assumed that the employee made the deliveries during the working hours assigned to him. The working hours assigned to the respective mailman also regularly characterize the usual local delivery times. Concluding, it may be assumed that the employee had a reasonable chance to read the letter on the same day.
With its decision, the Nuremberg Regional Labor Court follows recent case law on eased proof of receipt of termination letters by the Federal Supreme Court and other Regional Labor Courts.
The delivery of letters of termination (and other documents such as formal warnings, declarations regarding the unilateral implementation of garden leave, etc.) is one of the many bureaucratic nuisances that HR departments in Germany have to deal with. The (presumably often untruthful) denial of receipt by employees is just as common as moving house without notification of a change of address to the employer or even unscrewing letterboxes. Notices of termination can only be given with legal certainty by personal delivery or specially recorded delivery. In any case, n where a legal dispute is already to be expected or where the exact date of receipt is important (end of probationary period, end of month (as was the case in the present judgment in Nuremberg, etc.), it is essential to use such a form where the receipt may be proven easily.
In the case of other ‘everyday’ notices of termination, however, Deutsche Post's registered mail may be favorable from a pragmatic and economic point of view. However, the Regional Labor Court emphasizes once again in the decision that a proof of posting of a registered letter alone is not sufficient to prove receipt of a notice of termination. As a rule, the corresponding proof of delivery with the signature from the mailman is required as well. Such proof of delivery must be requested separately from the mail service provider. The decision does not mention Deutsche Post AG by name; however, it can be rightfully assumed that this service provider was meant and that German courts continue to place a higher level of trust in the state-owned Deutsche Post AG as opposed to other privately owned mail service providers.