Time of receipt of a termination notice if it is posted into a home mailbox

BAG, ruling dated August 22, 2019 - 2 AZR 111/19

The time of receipt of a termination notice may be a deciding factor in the success of an action for unfair dismissal. In the event that the termination letter is not handed personally to the employee but posted into their mailbox, the court must determine when it was expected that the mailbox would be emptied and therefore when the letter was received.

Facts of the case

The plaintiff is a long-term employee of the defendant. The latter terminated the employment relationship extraordinarily without notice in a letter dated January 27, 2017 (Friday). The termination letter was posted by an employee of the defendant in the home mailbox of the plaintiff on the same day, at approximately 1.25 p.m. Postal delivery to the residence of the plaintiff usually takes place in the morning by approximately 11 a.m. 

On February 20, 2017, the plaintiff filed an action for unfair dismissal with the labor court. The defendant takes the view, however, that the termination letter had been received by the plaintiff on January 27, 2017. This means that the three-week notice period according to Section 4 German Protection Against Unfair Dismissal Act (KSchG) was not observed and the termination was valid. The plaintiff declares that he only discovered the termination letter on Monday, January 30, 2017 in his home mailbox, meaning that he kept to the deadline.

Decision

The time of delivery is a deciding factor in the result of the legal dispute. The Higher Labor Court (Landesarbeitsgericht) Baden-Württemberg had assumed that the delivery had already been made by January 27, 2017. According to customary circumstances and practice, it is to be expected that the home mailbox of an employee will be emptied by 5.00 p.m. However, the plaintiff was successful with his second appeal. The appeal in the first instance was set aside and the matter referred back to the Higher Labor Court (LAG). 

The BAG explained that posting a termination letter into a mailbox does ensure receipt as soon as the next retrieval is to be expected according to the generally accepted standards. In this respect, the individual circumstances of the recipient should not be taken into account. Instead, a generalized consideration should be made in the interest of legal certainty. The LAG has not sufficiently determined when the letter, posted on January 27, 2017 at approximately 1.25 p.m., was expected to be retrieved according to the generally accepted standards. 

The BAG criticized that the court of first appeal based its determination of generally accepted standards on the working population. This, however, is a population minority, albeit a large one, even when including part-time employment relationships. The LAG did also not consider that not all working individuals live in single households. Therefore, the home mailbox might also be emptied by other cohabitants who do not work or work at other times. In such case, the mailbox might not be emptied again on the same day.

The LAG also fixed the time of emptying at 5.00 p.m. According to the LAG, this was an "appropriate" time. From the point of view of the BAG, the LAG did not explain where this time or degree of appropriateness was derived from. It was deemed a randomly set point of time. As the generally accepted standards are the deciding factor, a consideration of the principle of proportionality cannot be used as a basis.

Practical notes

The time when a termination notice is received depends on the generally accepted standards. If compliance with a deadline is a deciding factor, e.g. the two-week deadline for extraordinary terminations, employers run a major risk if they only deliver the termination letter on the last possible day. If this cannot be avoided, it is recommended that the letter be posted into the (home) mailbox as early as possible on the last day of the deadline.