The two lower courts had also ruled that sending a document by registered post with return receipt, together with the simultaneous submission of the proof of posting and a copy of the proof of delivery, no longer constitutes prima facie evidence of the recipient’s receipt of that document. Employers must prove the receipt of a notice of termination and other declarations requiring acknowledgement of receipt by other means of evidence.
The reason for the departure from previous case law – which, in the case of registered post with proof of posting, accepted the presentation of the proof of posting together with a copy of the proof of delivery as prima facie evidence that the item had been placed in the letterbox – is the change in the delivery procedure at postal operators. Previously, the delivery of a registered letter by Deutsche Post was effected by placing the item in the recipient’s letterbox or post office box, whereby the postal worker, immediately prior to posting, removed the so-called ‘peel-off label’ from the item and affixed it to the prepared delivery receipt relating to the item posted. On this receipt, the post office employee confirmed delivery after posting by signing it and adding the date.
This procedure has been digitised by Deutsche Post. Now, only the registered letter’s tracking number is scanned, and the postman signs the scanner’s input field. The date is automatically recorded, after which the postman places the letter in the postbox. The recipient’s address and the time are not noted. Nor can the method of delivery – handover to the recipient or posting in the letterbox – be determined from the delivery receipt. According to the case law of the Federal Labour Court, the new procedure therefore does not constitute a typical delivery process of the sort that could establish prima facie evidence. Rather, it would still depend on the individual circumstances of the specific case and the question of how conscientiously the particular delivery person carries out their task and correctly posts the letter.
For the employer, this consequently means that, in the event of a dismissal, choosing a registered letter posted in a postbox as the method of delivery creates significant litigation risks. The person who delivered the item will be unlikely to remember the specific delivery and will therefore be unable to act as a witness. Employers should therefore rely on legally secure alternatives in future when it comes to the delivery of notices of dismissal and other legally relevant correspondence. If you have any questions, please do not hesitate to contact our lawyers specialising in employment law. However, this issue arises in the same way in other areas of law where documents must be served.
Dr Merle Wilm Dr Christoph Bialluch