Termination Evasion | Prevention of Receipt of a Termination Letter

Pitfalls When Issuing a Termination

Legislators—and even more so labor courts—tend to place significant obstacles in the path of employers, while employees enjoy various privileges even in cases of serious misconduct. Termination is particularly sensitive, as employers who wish to dismiss staff encounter many pitfalls, for example questions such as:

• Is the termination sufficiently justified?

• Is it socially justified?

• Have the deadlines been observed?

• Has the termination been properly delivered?

 

Even a single minor flaw can lead labor courts, according to the experience of our detectives in Weinheim*, to overturn terminations. This can result in companies having to reinstate work-shy, underperforming, criminal, or otherwise non-compliant employees, despite this usually being unreasonable. Following a labor dispute, a reasonable working climate is often no longer possible; reinstated employees frequently take sick leave and are unavailable to the company, leaving employers without certainty regarding the intentions of the absentee and thus without planning security.

 

In the case at hand, a company in Weinheim unsuccessfully attempted to terminate an employee who, after six months of employment, had already been on sick leave for five months. The termination letter could not be delivered because the employee had moved without leaving a forwarding address; telephone contact was also impossible, as an unknown third party answered the previous number. One could argue that this constituted willful prevention of receipt of the termination, as the employee did not notify the employer of the change of address. The Federal Labor Court supported this view in a 2005 ruling (Ref.: 2 AZR 366/04). However, ordinary labor courts and state labor courts do not always share this opinion, and employers who cannot—or choose not to—appeal to the Federal Labor Court risk having the termination rejected. This occurred, for example, at the State Labor Court in Munich the previous year (Ref.: 10 Sa 246/04):

Excursus: “Recipient Unknown, Moved” Often Not Sufficient

In principle: If an employee prevents the timely receipt of a termination due to self-inflicted circumstances such as a missing mailbox, missing mailbox or doorplate labeling, providing a wrong address, not collecting or collecting the mail late, this constitutes prevention of delivery, and the termination is considered delivered. In the cited Munich case, a termination during the probation period was returned with the postmark indicating that the recipient had “moved unknown.”

 

In the subsequent trial, the employee’s claim that the mailbox had indeed been correctly labeled was sufficient in the court’s eyes because: “The burden of explanation and proof for all facts justifying the objection that the employee invokes the delayed receipt of a termination in bad faith rests with the party issuing the termination.” The contrary testimony of the postal delivery person was not given decisive weight: “Even if, according to the witness, nameplates were removed from the doorbell and mailbox at the time of attempted delivery and replaced shortly thereafter, this does not prove that the plaintiff caused this. While it may be unlikely that a third party would have a sensible explanation, it cannot be conclusively inferred that it was the plaintiff’s action.” This highly questionable ruling illustrates the sometimes convoluted arguments employers must face in court.

 

The main reasoning in favor of the employee: “The employer can only derive favorable legal consequences from his unreceived declaration in good faith if he has done everything necessary and reasonable to ensure that his declaration could reach the addressee. This generally includes promptly attempting another delivery upon learning that delivery has not occurred…” In other words, the court would recognize the employer as being in the right only if further terminations had been sent before the end of the notice period—to an address known to be undeliverable. Pure nonsense.

Mailbox Address as Alleged Residence

Due to these borderline experiences with labor courts, our clients in Weinheim wanted to be absolutely certain and have the impossibility of delivery documented. If feasible, a deliverable address for the target person was also to be determined. This would have allowed the employer, even if the investigation were unsuccessful, to prove that everything reasonable had been done to deliver the termination.

 

The target individual was originally from Perth, Scotland, about an hour north of Edinburgh, but had been living in Germany for many years. During research, our responsible private detective in Weinheim discovered that the Scotsman had never actually lived at the address provided to the employer. The alleged residence was instead an office building, housing, among others, a company offering a postal service. An inquiry with the company confirmed that the target had used this service. However, the Scotsman had not been seen there for over two months; his mail had piled up, and because he had neither paid nor responded to contact attempts, his name was removed from the mailbox. Further research revealed no forwarding request at the relevant post office.

False Information Provided to Multiple Authorities

Officially, the target’s last registered address was Bensheim, but they had already been deregistered as “moved unknown” approximately five months before the investigation began. A landlord later located confirmed the individual’s former residence in Bensheim and their departure, though the move had occurred only about three months prior. Previous addresses were in Bavaria (Munich in the 1990s, then Würzburg, and later a small village near Aschaffenburg); contacted neighbors and landlords confirmed they had no relevant information on the current whereabouts.

 

After the six-week continued pay period ended, the individual received sick pay from AOK Bavaria, where their 20-year-old Munich address was still on file. Clearly, spreading outdated addresses had been a recurring pattern. According to the German Pension Insurance, the target had only two registered employment periods: the one being terminated and another one-month position just before employment with the client of our Weinheim economic detectives. The address on record was Würzburg. No entries existed in debtor registers of the responsible local courts (Aschaffenburg, Bensheim, Munich, Weinheim, Würzburg). Only one recently closed case at the Munich public prosecutor’s office listed the target as a victim, again with the old Munich address.

All Options Exhausted, But a “But” Remains

As the current location could not be determined via database research, the client instructed our private detectives in Weinheim to abandon that approach. The final step was to check the three known addresses and the postal service address in person. Mannheim detectives went to Weinberg, Frankfurt colleagues to Aschaffenburg, and Munich and Würzburg detectives conducted urban address checks. The goal: inspect and photograph mailboxes and doorbells at all four addresses. The target’s name was found at none of them.

 

Thus, the clients of our economic detectives in Weinheim had exhausted all reasonable means to deliver the termination. One problem remained: the employment contract did not require the employee to notify the employer of an address change. Whether this is considered an implied duty in employment law—making explicit mention in the contract unnecessary—remains legally and judicially unresolved in Germany. This could constitute one of the potential pitfalls mentioned at the beginning, given Germany’s employee-favoring court decisions.

All names and locations have been changed to protect client and target subjects privacy.

 

Kurtz Investigations Mannheim and Rhine-Neckar

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D-68161 Mannheim

Tel.: +49 621 9535 4001

E-Mail: kontakt@kurtz-detektei-mannheim.de

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