Although labor disputes are commonly associated with the private sector, the underlying formal requirements apply equally to nonprofit organizations in Germany. Particularly for associations, foundations, and charitable limited liability companies, which often operate with limited administrative resources, formal errors (such as failure to observe notice periods) can quickly lead to significant legal and financial consequences. A recent decision by the Federal Labor Court (BAG) illustrates just how high the hurdles are, especially when it comes to proving receipt of notices of termination: In that case, an employer failed in its attempt to prove receipt of a notice of termination sent by registered mail delivered to mailbox by means of a proof of posting and shipment status – the court did not consider this sufficient proof (BAG, judgment of January 30, 2025, 2 AZR 68/24).
Termination without notice leads to unfair dismissal lawsuit
An employer terminated an employee’s employment contract with immediate effect for disciplinary reasons, or alternatively with notice. The employee filed an unfair dismissal lawsuit with the competent labor court, citing her pregnancy.
Consequently, the employer obtained the required approval for termination of the employment relationship from the competent regional council and subsequently terminated the employment relationship again without notice. The employee contested the receipt of this further termination in the context of the still pending unfair dismissal proceedings.
Employees take notice of termination to the post office
The employer, who bore the burden of proof regarding the receipt of the notice of termination, argued later in the proceedings that two employees had placed the termination letter together in an envelope, which was then taken to the post office and mailed there as a registered letter. As proof that the termination letter had indeed been delivered, the employer submitted the proof of posting and the shipment status (which showed that the letter had been delivered) for this mailing.
Terminations may be invalid without proof of receipt
Although the employer was unable to produce a delivery receipt, it argued that the proof of mailing and the shipment status together constituted sufficient evidence of receipt, such that the employee could not simply dispute this across the board. Therefore, the employment relationship had in any case been terminated by the second notice of termination.
The Federal Labor Court upheld the employee’s action for unfair dismissal and declared the termination invalid, as the employer had failed to provide sufficient proof of receipt of the termination notice in question.
Full proof of receipt of the notice of termination required
The Federal Labor Court ruled that the evidence submitted by the employer regarding receipt of the notice of termination via registered mail delivered to mailbox was insufficient to prove receipt, which the employee disputed.
The employer was initially unable to provide conclusive proof of receipt. To do so, the employer could, for example, have called the delivery person as a witness, who could then have confirmed the delivery of the notice of termination to the employee during the hearing of evidence.
Proof of mailing with a tracking number does not constitute conclusive evidence
Even if the employer submitted a proof of mailing with a tracking number and a shipment status – the electronic retrieval of which indicated that the shipment had been delivered on a specific date – as evidence of delivery of the notice of termination via registered mail, this does not constitute conclusive evidence that the employee received the notice of termination.
In the court’s view, these documents also do not constitute sufficient evidence of receipt. Preliminary evidence applies in typical sequences of events, i.e., in cases where a specific set of facts has been established which, based on general life experience, points to a specific cause or sequence of events as decisive for the occurrence of a specific result. These requirements are not met in the present case.
Mailing receipt only proves dispatch
The court explained that the submission of the mailing receipt only proves that the letter was sent, but not that it was received, meaning that the mailing receipt is irrelevant to the question of receipt. Furthermore, the choice of registered mail does not significantly increase the likelihood that the item will reach the intended recipient compared to regular mail.
The printout of the shipment status, which shows the same tracking number as on the proof of mailing as well as the delivery date, also does not provide sufficient assurance of receipt, insofar as it merely indicates the date of delivery. In this case, it is not possible to determine to whom the delivery was to be made (personally to the recipient, to another person in their household, or deposited in the mailbox), nor at what time, at what address, or at least in which delivery district. The shipment status therefore does not constitute a substitute for the delivery receipt.
Recommendations for action regarding terminations by nonprofits in Germany
The ruling highlights how stringent the legal requirements are for proving the delivery of a termination notice in Germany. These requirements naturally apply equally to proving the delivery of other correspondence.
While proof of delivery can still be provided by means of a registered letter delivered to mailbox, this is only valid if a delivery receipt can also be presented, indicating exactly when and where the specifically named delivery person delivered the letter.
Any errors that occur in this context – for example, because the delivery person fails to fill out the delivery receipt or fills it out incorrectly – are borne by the employer in the event of a dispute and, in the worst case, result in the inability to prove receipt of a notice of termination or other correspondence. Furthermore, a copy of a delivery receipt can only be requested from Deutsche Post within a 15-month period, as they only retain this information for this limited timeframe.
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To ensure compliance with legal deadlines, our clear recommendation is to first consider the option of personally delivering the termination letter at the workplace in the presence of witnesses and to prioritize this method. If this option is not feasible, delivery should be made by courier, who should document the delivery as thoroughly as possible.
Only if other delivery options are not feasible should delivery by certified mail delivered to mailbox be used, in which case the employer must, in accordance with case law, ensure that a proof of delivery is obtained. As soon as the employer receives this proof, they should verify its completeness and accuracy and, in case of doubt, arrange for redelivery promptly.
WINHELLER advises on terminations and related matters
We are happy to assist you with all questions regarding terminations and employment relationships in associations, foundations, and charitable LLCs in Germany. Please feel free to contact us!
