24. Dec 15

BAG: Employees cannot frustrate delivery of notice of termination in bad faith

In the field of employment law, a notice of termination is considered to have been received if it has entered the sphere of control of the recipient, who was thus able to receive notice of the dismissal.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Deadlines need to be complied with when terminating employment contracts. The same applies if the employee wishes to take legal action against dismissal. One cannot simply sidestep the deadline on the grounds that the notice of termination was allegedly not served in time if the employee did in fact have the opportunity to receive notice of the termination. The employee cannot simply frustrate the delivery of the notice of termination in bad faith. That was the ruling of the Bundesarbeitsgericht (BAG) (German Federal Labour Court) in its judgment of March 26, 2015 (Az.: 2 AZR 483/14).

In the case in question, the employer had summoned an employee into his office and given notice of her dismissal due to operational circumstances. During the conversation, an attempt was said to have been made to hand the employee written notice of the dismissal, but she refused to accept this and left it lying in the office. The employer subsequently tried to present the notice of termination through messengers. However, this was also unsuccessful, with the result that the messengers placed the notice of termination in the employee’s letterbox. Whether this happened on the same day or a day later was disputed. In the end, the employee lodged an action for unfair dismissal.

An action for unfair dismissal has to be submitted within a period of three weeks. This deadline cannot be extended by the employee frustrating delivery of the notice of termination in bad faith, e.g. by refusing to accept it. He cannot then assert that the notice of termination had not been received, because it would in fact have entered his sphere of control. Ultimately, the decisive factor was when the notice of termination was delivered and whether the action for unfair dismissal was received in time. The BAG referred the matter back to the regional labour court to examine the facts and circumstances of the case.

Various regulations need to be observed when terminating employment contracts for the termination to be effective. Lawyers who are experienced in the field of employment law are able to review the effectiveness of termination notices.

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