German Federal Labor Court: Receipt of a notice of termination by registered mail delivered to mailbox

In the present case, the plaintiff had been employed by the defendant since April 2021. According to the employment contract, the parties had agreed upon a notice period of one quarter to the end of each quarter. The defendant gave ordinary notice of termination of the employment on September 28, 2021, with effect from December 31, 2021, which was undisputedly delivered to the plaintiff’s mailbox on September 30, 2021 by a Deutsche Post AG employee.

Plaintiff challenged validity of termination due to time of delivery

In the lawsuit, the plaintiff challenged the validity of the termination as of December 31, 2021. The termination was rather only effective as of March 31, 2022, as the notice of termination was not received until October 1, 2021, because it was not delivered during the usual postal delivery hours.

The labor court dismissed the claim. The appeal was also unsuccessful. On June 20, 2024 (2 AZR 213/23), the Federal Labor Court confirmed the rulings of the lower courts (Nuremberg Labor Court, ruling of November 23, 2022 – 4 Ca 4439/21; Nuremberg Regional Labor Court, decision of June 15, 2023 – 5 SA 1/23) and dismissed the appeal.

According to the established case law of the Federal Labor Court and the Federal Court of Justice, a notice of termination becomes effective upon receipt by the recipient in accordance with Art. 130 BGB (German Civil Code). According to the definition of case law, receipt means that the notice of termination must come into the recipient’s sphere of influence in a customary manner and that the recipient has a reasonable opportunity to take note of it under normal circumstances.

Delivery during normal delivery hours effects receipt by the recipient in accordance with case law

This was the case for the delivery of a registered letter (delivered to mailbox) by a Deutsche Post AG employee during his assigned working hours. There is at least prima facie evidence that delivery was made during normal delivery hours, in this case indisputably on September 30, 2021. The plaintiff had not provided any substantiated evidence to the contrary.

The plaintiff should have provided evidence of facts that make it likely that the course of service in the disputed case was not typical. However, the plaintiff failed to do so. As a result, the plaintiff was expected to inspect the notice on the day it was delivered (September 30, 2021) and the notice of termination was effectively received. 

Despite BAG ruling: Pitfalls for companies in case of registered mail (delivered to mailbox)

The decision logically supplements the rule generally recognized in case law that, when sent by registered mail, a letter is deemed to have been delivered on the date shown on the delivery receipt from Deutsche Post AG. Despite the described facilitation with regard to the time of delivery in the case of delivery by registered mail (delivered to mailbox), it should be borne in mind that the content of the mail is not documented with certainty and that there is always a risk of delayed delivery.

Delays in delivery represent a considerable, but also unnecessary risk, especially when it comes to meeting deadlines of just one or a few days. In this respect, it is advisable either to hand over the notice of termination in person, preferably in the presence of witnesses, or to have it delivered by a courier. The courier can take note of the contents of the notice before it is sealed and document the delivery with photos and a time stamp.