Receipt of the notice of termination at the usual postal delivery times

In the opinion of the Federal Labor Court (BAG, judgment of June 20, 2024 – 2 AZR 213/23), a letter of termination sent by Deutsche Post AG is prima facie evidence that it was delivered during normal postal delivery times.

A letter of dismissal is sent by post and lands in the employee’s letterbox on the last day of the notice period. This is an everyday situation, but it is a perennial issue in labor courts. The question is usually: Was the notice of termination still received on time? According to established case law, a notice of termination is received on the day on which the recipient can be expected to take note of it. The standard for this is the “usual circumstances” and the “customs of the trade”. Accordingly, the letter box can be expected to be emptied after the usual postal delivery times and therefore the notice of termination can be expected. Letters that are delivered during normal postal delivery times are deemed to have been received on that day. If, on the other hand, a letter is only posted after normal postal hours, it is not expected to be received until the next working day. This means that the notice period would not start until the next working day.

Does the employer have to prove the time of delivery?

But what if the time of delivery is unknown? The Federal Labor Court had to decide on a case in which the mail carrier of Deutsche Post AG had indisputably dropped the notice of termination in the employee’s mailbox on the last day of the notice period. However, the time of delivery was not documented. The dismissed employee denied in court that the letter had been posted within the usual postal delivery times. As the employer could not prove the time of delivery, the employee argued, the notice of termination was only deemed to have been delivered the next day. In this specific case, this would have meant that the notice of termination would not have taken effect until three months later, as a notice period of three months to the end of the quarter had been agreed.

BAG: Prima facie evidence of delivery during normal postal delivery times

However, the BAG rejected the employee’s argument. It ruled that the employer did not have to prove the time of delivery by Deutsche Post AG. Rather, there was prima facie evidence that the letter of termination was placed in the plaintiff’s letterbox on the day of delivery during normal postal delivery times. The usual mail delivery times are determined by the working hours of the mail carrier. The prima facie evidence could be shaken by atypical circumstances that suggest a different course of events. However, the employee had not presented such circumstances.

Registered letters are still better suited for proof of receipt

From the employer’s point of view, particular attention should be paid to choosing the correct method of dispatch. If the notice of termination is sent by simple letter from Deutsche Post AG or another provider, the employer will not be able to prove delivery if the employee disputes it. It is therefore better to use a method of dispatch where both posting and delivery can be proven. This is the case, for example, with registered mail, where the time of delivery can be delayed by the employee, for example by not accepting or collecting the registered mail. This risk does not exist with a registered letter. However, the sender does not receive any comparable proof of delivery. According to a decision by the Baden-Württemberg Higher Labor Court, retrieving the status of the consignment is not sufficient to establish prima facie evidence of delivery. A proof of delivery with the signature of the deliverer should therefore also be downloaded. This should be done quickly, as the proof of delivery is only temporarily available for download. However, the BAG has not decided here whether the proof of delivery is sufficient evidence.