No legally valid service via registered post delivered to a letterbox

Facts of the case 

An employee, who had been in service since 2015, repeatedly took extensive sick leave between 2020 and 2023. Before the employer terminated the employment contract with notice on the grounds of frequent short-term sick leave, it sent the employee – by registered post with proof of posting – an invitation to participate in a workplace integration management programme (BEM). Receipt of this letter was disputed.

The ruling

In the view of the Federal Labour Court (BAG), the dismissal on grounds of illness is disproportionate. Due to the significant periods of sick leave, the employer was obliged to offer a BEM. The point of dispute was whether the employee had received the invitation letter dated October 2023 by registered post with delivery confirmation and whether the employer had therefore duly fulfilled its obligation to take a further initiative regarding a BEM.

In the so-called ‘scan procedure’, after ensuring that they are standing in front of the correct letterbox, the postman scans the barcode on the item and then confirms delivery on their scanner, even though the letter has not yet been posted. In the view of the Federal Labour Court (BAG), the scanning procedure used does not constitute prima facie evidence of delivery of the registered letter with proof of posting. If confirmation of delivery takes place at a time when delivery has not yet been effected, this negates any presumption of the actual receipt of the registered letter. The postman could, for example, be distracted after the scanning process, meaning that the letter is not posted despite the documented delivery. A registered letter for posting therefore only provides evidence that posting was imminent, but not that it actually took place.

Implications in practice

In the case of delivery by ‘drop-off’ registered post using the so-called ‘scan procedure’, the prima facie evidence of a letter’s receipt does not apply. The employer must then prove receipt by calling the delivery person as a witness, which, however, is unlikely to be realistic in practice.

Practical advice

This ruling highlights the risks associated with delivery by registered post with proof of posting and applies not only to invitations to a BEM but to all employer communications requiring acknowledgement of receipt. Where documents requiring acknowledgement of receipt – in particular notices of termination or invitations to a BEM – need to be sent, the only practical options are therefore personal delivery or delivery by a known courier or a courier service that has been duly commissioned and instructed.

We would like to thank our colleague Stephanie Kluge, LL.B., Business Lawyer, for co-authoring this article.