Obstruction of access when announcing a letter of termination, BAG 26.03.2015 - 2 AZR 483/14

If an employee prevents the receipt of a notice of termination, he/she must be treated as if the notice had already been received when the attempt was made to send it. If the employee should have expected, based on the employer's statements and the circumstances, that a notice of termination would be received in the afternoon by posting it in the letterbox, a notice of termination shall be deemed to have been received on the afternoon of the same day.

The parties are in dispute about the date of receipt of a letter of termination issued on October 22, 2012. On 22.10.2012, the parties held a meeting at the company in which the termination was announced and the letter of termination was shown to the plaintiff. It remained disputed between the parties whether the letter of termination had already been posted in the plaintiff's letterbox on 22/10/2012 or only on 23/10/2015. The plaintiff found the letter of termination in her letterbox on 24.10.2015. The plaintiff filed an action for unfair dismissal on 14.11.2012 to defend herself against the dismissal.

The first instance labor court dismissed the action, the regional labor court upheld it. The Federal Labor Court overturned the ruling of the Regional Labor Court and referred the case back to the Regional Labor Court for a new hearing. In its judgment, the Federal Labour Court assumes that the notice of termination at issue may have been received as early as the opportunity to take note of it at the meeting on 22 October 2015. Even if the plaintiff did not take the letter of termination with her, a recipient who prevents receipt through their own conduct must be treated as if they had already received the declaration at the time of the attempted transmission. Furthermore, in the opinion of the Federal Labor Court, it cannot be ruled out that the notice of termination was received by the plaintiff on October 22, 2012 or October 23, 2012 by posting it in the mailbox. In the case of posting in a letterbox, receipt is deemed to have been effected as soon as it can be expected to be taken out according to the public opinion. This does not depend on the individual circumstances of the recipient. In principle, a letter of termination is only deemed to have been received on the following day if it is posted in the letterbox after the usual postal delivery times without the addressee's knowledge. However, since the notice of termination and its delivery were announced by posting it in the letterbox at 5 p.m., the letter is expected to be received on the same day. The notice of termination was therefore received on the same day. If these facts are confirmed after a new hearing before the Regional Labor Court, the action for protection against dismissal filed by the plaintiff on November 14, 2015 would be late and the dismissal would therefore be effective pursuant to Sections 4 and 7 KSchG.

Irrespective of the Federal Labor Court's correct statements on thwarting receipt and the possibility of effecting receipt by posting the notice in the mailbox in the afternoon after appropriate notification, the Federal Labor Court still assumes in its statements that a notice of termination that is posted after the usual postal delivery times will only be received on the following day. In view of the change in delivery times until late afternoon by a large number of existing delivery companies in addition to Deutsche Post, this case law should be reconsidered. The assumption that the usual delivery times are before 10 a.m. is outdated.

Date: 26. Mar 2015