Registered letter and consignment status – no prima facie evidence of receipt
Update Employment Law April 2025
BAG judgment of January 30, 2025 – 2 AZR 68/24
Introduction
The judgment handed down by the Federal Labor Court (BAG) on January 30, 2025 addresses, inter alia, the evidentiary requirements for establishing that a letter of termination has reached its address. The Court held that delivery by way of Einwurf-Einschreiben (a form of registered mail that is placed in the addressees’ letterbox with a proof of delivery slip) does not satisfy those requirements, when the sender can produce only the certificate of posting and the online tracking record, but is unable to present the Auslieferungsbeleg (a proof of delivery slip issued by the postal service once a letter has been placed in the letterbox).
Facts of the case
The plaintiff had been employed by the defendant as a receptionist since May 2021. By letter dated March 14, 2022, the defendant declared the termination of the employment relationship without notice (außerordentliche fristlose Kündigung), alternatively with due notice. The plaintiff then filed an action for unfair dismissal (Kündigungsschutzklage) and notified the court of her pregnancy. The Labor Court declared the dismissal null and void on the ground that the plaintiff was pregnant and the defendant had failed to obtain the requisite prior authorisation of the competent authority, a condition to any lawful dismissal of a pregnant employee.
On July 25, 2022, the defendant obtained the requisite authorisation of the competent authority for the dismissal. Consequently, the next day on July 26, 2022 the defendant issued a new letter of termination without notice, and in the alternative, an ordinary termination effective September 30, 2022. The plaintiff contends that she never received this letter.
According to the defendant’s submission, two of its employees had jointly placed the letter of termination in an envelope. One of the employees had then personally posted the envelope at the post office as an Einwurf-Einschreiben. The online tracking showed delivery of the letter to the plaintiff on July 28, 2022.
The Labor Courts dismissal of the action against the renewed termination was later overruled by the Higher Labor Court (LAG). With its appeal, the defendant pursued its claim for dismissal.
Decision
The BAG upheld the decision of the LAG. It ruled the defendant had not succeeded in proving the letter of termination dated July 26, 2022 was received by the plaintiff.
Under § 130 (1) sentence 1 of the German Civil Code (BGB), a written declaration of intent addressed to an absent party becomes effective once it comes within the recipient’s sphere of control and the recipient can, in the ordinary course of events, take note of its contents. The burden of proving such receipt lies with the sender – in this case, the defendant.
The Federal Labour Court held that the defendant failed to establish that the termination letter had been deposited in the claimant’s letterbox on July 28, 2022 and could not rely on any prima-facie presumption of delivery. The certificate of posting for the Einwurf-Einschreiben – even when paired with the tracking number and the online shipment status – was deemed insufficient to create such a presumption of actual receipt.
The BAG ruled that production of the Auslieferungsbeleg is a sine qua non for invoking an evidentiary presumption of receipt. A mere shipment-status printout discloses neither the recipient – be it the addressee in person, a co-occupant, or delivery by mailbox insertion – nor the precise hour, service address, or delivery sector.
Since the defendant had not been able to produce this evidence, it failed to discharge its burden of proof.
Recommendation
The ruling emphasizes the strict requirements governing proof of receipt of termination letters. Although Einwurf-Einschreiben can suffice in principle, the Court stressed that an Auslieferungsbeleg must be produced. Deutsche Post (the German postal service) retains such certificates for fifteen months, and they may be requested within that period.
To safeguard statutory deadlines – a factor of decisive importance when serving notices of dismissal – we strongly advise against using Einwurf-Einschreiben. Should personal delivery of the letter at the workplace before witnesses be infeasible, the letter ought to be served through a duly instructed messenger.
In the case of delivery by messenger, it is important to remember that the messenger must know the content of the declaration to be delivered. This means that you must allow the messenger to read the letter of termination, after which the letter must be sealed in the presence of the messenger. Finally, the messenger should draw up a detailed report after delivery.
