The end of delivery by registered mail?

Facts of the case

A long-term waste disposal employee had repeatedly taken extensive sick leave over the past three years. The employer terminated his employment with notice due to frequent short-term illnesses. This was preceded by a company integration management (BEM) process, which is said to have been offered again by registered mail before the termination was announced; the employee did not respond to the invitation. In the unfair dismissal proceedings, he denied receiving this invitation.

Decision

The Hamburg Regional Labour Court considers the dismissal to be socially unjustified. Although the documented absences in the reference period of three years indicated a negative health prognosis, and the predicted absences caused considerable operational disruption, in particular due to continued payment of remuneration costs above the six-week limit per year. However, the dismissal failed on the grounds of proportionality. The company was unable to prove that it had properly offered a new BEM before giving notice of dismissal.

The focus is on the delivery problem: in the court's opinion, the submission of the proof of posting and the reproduction of the proof of delivery for registered mail does not constitute "prima facie evidence" of receipt. Unlike the previous "peel-off" procedure (in which the post office removed a label and signed it), the current scanning procedure does not document the specific recipient address or the exact time of posting; in addition, the confirmation of receipt remains ambiguous (delivery to authorised recipient or posting in the letterbox) without any option being ticked. The typicality of an error-free process is therefore not guaranteed; individual delivery risks rule out prima facie evidence. The examination of the delivery person as a witness also did not reveal any sufficiently reliable memory or standardised description of the procedure that would support actual delivery in the specific case.

Consequences for practice

With regard to the requirements for dismissal due to illness, the LAG follows previous case law. However, the question of proof of receipt is particularly relevant in practice: in the opinion of the LAG, registered letters delivered by post do not provide prima facie evidence of receipt if only the proof of posting and a reproduction of the delivery receipt are available. The current scanning procedure does not show the recipient's address or the time of delivery and leaves the delivery options open; thus, it lacks the typical characteristics of an error-free process. Without reliable witness statements or supplementary documentation, the risk of delivery remains with the sender.

Practical tip

The decision clearly shows the risks involved in delivery, not only in the delivery of the notice of termination, but also in the delivery of a BEM invitation letter. In practice, personal delivery and delivery by a courier – who may be personally known – remain the only secure ways to deliver important letters such as an invitation to a BEM or a notice of termination. The courier can then be heard as a witness in dismissal protection proceedings if necessary. Delivery by registered mail or return receipt cannot be recommended, as the notice of termination will only be received if employees actually pick up the letter if it cannot be handed over; employees therefore have the power to prevent delivery.