Ensure any letter of termination is effectively served

No employer finds it easy to tell employees they are being dismissed. Still, where there is no other option, the letter of termination must be served in a manner that ensures it’s effective.

In order to terminate the employment relationship, the notice of termination must be in writing and must be served on the employee. For employers, proving this supposed banality often causes unexpected difficulty. Recently, for example, the Labour Court of Baden-Württemberg rejected the evidence of service, in that case a postage receipt and the delivery status of a registered letter (Judgment of 17 September 2020 in Case 2 Sa 38/19). The consequences were disastrous: the presumably terminated employment relationship still existed and the employer had to pay default wages and continue to employ the employee.

It can be just as important to be able to prove the time that a letter of termination was received. This can determine whether the letter of termination was received during a probationary period or whether an action against unfair dismissal was filed in due time.

What should employers note?

To avoid any nasty surprises, employers should serve the letter of dismissal on the relevant employees in one of the following ways (alternatives):

1. Hand it to the employee personally:
The letter of termination is handed to the employee personally – where possible with witnesses - and the employee signs a copy of the letter to acknowledge receipt. Take care: don’t accidentally hand over the copy! The original letter of termination must be served on the employee. If the employee refuses to sign to confirm receipt, the deliverer and/or the witness should confirm the delivery in a report. This should not (only) be the managing director as they cannot appear before the court as a witness.

2. Have a messenger place it in the mailbox:
A messenger can put the original letter of termination in the employee’s letterbox at their residential address. For this scenario, it is important that (1) the messenger knows that the document is a letter of dismissal, (2) the letter is first placed in the envelope in the messenger’s presence and (3) the messenger records the date and time of that the letter was posted into the correct (!) letterbox, and, if possible, takes one or more photographs to document this. This is the only way to avoid the recipient claiming that they received the envelope but did not personally receive any letter of termination. The same rule applies here too: as the managing director cannot be a witness in court, they should also not be the (only) messenger. Better options are other employees or a commercial messenger service, who must be given precise instructions on what they need to do.

3. Service by a bailiff:
Although it is not often used, service by bailiff provides legal certainty. However, they can be scheduling bottlenecks, which should be anticipated.

What should employers avoid?

We advise against delivery via the post through simple, registered letters with advice of receipt ("Übergabeeinschreiben" or "Einschreiben mit Rückschein" - in both cases the deliverer hands over the letter only against the signature of the recipient or member of his household, the difference being whether this signature can only be viewed via online tracking or in original) or delivery letters ("Einwurfeinschreiben" - the mail carrier simply places the letter in the letterbox and signs a delivery note): The simple letter lacks any proof of delivery. In case of a registered letter, the recipient can refuse to accept receipt of the registered letter or the deliverer may not encounter the recipient at all. If the recipient then doesn’t collect the letter from the post office or does so too late, this will be to the employer’s detriment. This problem does not arise with a delivery letter as the letter is considered delivered when it's placed into the letterbox. However, a larger percentage of the labour courts do not assign any probative force to delivery notes because “complaints to the Deutsche Post about misdirected mail are common knowledge”. Even if the labour courts have more trust in the quality of the post, they may require an additional witness statement from the mail carrier who signed the delivery note. Quite often, months later, the mail carrier is no longer available or able to remember the delivery in any detail. Why not simply send letters of termination via email or WhatsApp? This would not be a good idea as in this case, the termination would be ineffective as it was not in proper written form.

Dr Corinne Klapper
Jonas Türkis

_{This article also appeared at the IHK Schwaben.}