Documentation of Obstructed Delivery (Case Study)

The legislator – and even more so the labour courts – like to place significant obstacles in the way of employers, while employees, even when engaging in gross misconduct, enjoy various privileges. The topic of dismissal is particularly sensitive in this regard, as employers wishing to terminate an employment contract face numerous stumbling blocks, such as questions like:

 

• Is the dismissal sufficiently justified?
• Is it socially justified?
• Have the deadlines been observed?
• Was the dismissal properly delivered?

If even a single detail is not absolutely watertight, the labour courts, in our commercial/corporate investigation experience, tend to overturn dismissals, forcing many companies to rehire work-shy, underperforming, criminal and/or non-compliant employees – even though this is regularly unreasonable. As it is usually impossible to restore a workable working atmosphere after a legal dispute, reinstated employees often obtain a medical certificate straight away and are then no longer available to the company, leaving the employer without certainty regarding the malingerer’s intentions and therefore without planning security.

 

In the present case, a company from Weinheim had unsuccessfully attempted to dismiss an employee who, despite only six months of service, had already been on sick leave for five months. The relevant letter could not be delivered because the employee had apparently moved without leaving a forwarding address; he could not be reached by telephone either, as an unknown third party was now answering his previous number. One could argue that this constituted a bad-faith obstruction of access, as the employee had failed to inform his employer of his change of address. The Federal Labour Court shared this view in a 2005 ruling (Ref.: 2 AZR 366/04). However, ordinary labour courts and higher labour courts do not always take the same view, and anyone not willing or able to fight their way to the Federal Labour Court risks having their dismissal rejected. This is exactly what happened, for instance, at the Munich Higher Labour Court the year before (Ref.: 10 Sa 246/04):

Excursus: “Addressee moved without leaving a forwarding address” often insufficient

As a rule, if an employee prevents the timely delivery of a dismissal through self-inflicted circumstances – such as a missing letterbox, lack of a nameplate on the letterbox or doorbell, providing an incorrect address, failing to collect or belatedly collecting delivered mail – this constitutes obstruction of delivery and the dismissal is deemed served. In the case heard by the Munich Higher Labour Court, a dismissal during the probationary period was returned with the note that the addressee had moved without leaving a forwarding address.

 

In the subsequent proceedings, the employee’s claim that the letterbox had indeed been properly labelled was deemed sufficient by the court, because: “The burden of presentation and proof for all facts substantiating the claim that the employee is invoking the delayed delivery of a dismissal in bad faith lies with the dismissing party.” The opposing testimony of the postal worker was not given decisive weight: “Even if, according to the witness’s statement, it is to be assumed that at the time of the attempted delivery nameplates on the doorbell and letterbox had been removed and were reattached a short time later, this does not prove beyond doubt that the plaintiff caused this. It may well be that there is hardly a plausible explanation for a third party committing such an act. On the other hand, based on the circumstances, one cannot conclusively attribute the act to the plaintiff.” An extremely questionable decision that illustrates the sometimes skewed reasoning employers must expect in court.

 

The court’s main justification for ruling in favour of the dismissed employee: “According to the principles of good faith, he [the employer] may derive favourable legal consequences from his declaration of intent, which was not received, only if he has done everything necessary and reasonable to ensure that his declaration could reach the addressee. This generally includes making another attempt as soon as he becomes aware that the declaration was not delivered …” In other words: the court would only consider the employer to be in the right if he had sent further dismissal letters until the end of the notice period – to an address that was already known to be undeliverable. Pure nonsense.

Letterbox Address as Alleged Residence

Due to such borderline experiences employers have with labour courts, our clients in this case wanted to play it absolutely safe and have the impossibility of delivery documented. If feasible without significant effort, a deliverable address for the target person was also to be identified. Thus, even if the investigation ended inconclusively, the employer could prove that they had done everything within their power to deliver the dismissal.

 

The target individual was originally from the Scottish town of Perth, roughly an hour north of Edinburgh, but had been living in Germany for many years. During research, our private investigator learned that the Scotsman had never lived at the address provided to the employer. The alleged residence was actually an office building in which, among other things, a company offering a postal service was based. A covert enquiry at the company confirmed that the target person had indeed been using this service. However, he had not been seen there for about two months; his mail was piling up, and since he had neither paid nor responded to contact attempts, his name had been removed from the letterbox. According to further enquiries at the relevant post office, no forwarding request had been filed.

Incorrect Information Provided to Numerous Entities

The target person had last been officially registered in Bensheim, but had already been deregistered by the authorities as “moved without forwarding address” around five months before our investigation began. The landlord, who was found shortly afterwards, confirmed both the former tenancy in Bensheim and the move-out – although the Scotsman had not left five or more months earlier, but only around three months prior. The target person’s previous addresses were in Bavaria (Munich in the 1990s, then Würzburg, and later a small village near Aschaffenburg); local residents and, in some cases, former landlords confirmed credibly that they had no information regarding the current whereabouts.

 

Since the end of the employer’s six-week continued pay obligation, the target person had been receiving sick pay from AOK Bayern, which still had the 20-year-old Munich address on file. Clearly, providing incorrect address information was a recurring pattern in his life. At the German Pension Insurance Fund, despite his long stay in Germany, only two employment relationships were registered: the one currently being terminated and another that had lasted only one month, shortly before starting the employment with our client. The known Würzburg address was recorded there. No entries were found in the debtor registers of the relevant district courts (Aschaffenburg, Bensheim, Munich, Weinheim and Würzburg). Only a recently closed case at the Munich Public Prosecutor’s Office was found, in which the target person appeared as the victim. Once again, he had provided the outdated Munich address.

All Options Exhausted, But One “However” Remains

As it had become clear that the target person’s current whereabouts could not be determined through a simple database search, the client instructed our commercial investigation team to abandon this approach. Instead, the three identified addresses that the target person continued to use as “official” addresses, plus the postal service address, were each to be checked on site. Accordingly, our Mannheim investigators travelled to Weinheim, the Frankfurt team drove towards Aschaffenburg, and the Munich and Würzburg investigators carried out inner-city address checks. The goal: to inspect the letterboxes and doorbells at all four addresses and document them photographically. The target person’s name was not found at any of the addresses.

 

Thus, our corporate investigators had exhausted all reasonable means of delivering the dismissal. One problem existed from the outset, however, and could not be remedied afterwards: the employment contract unfortunately did not include an employee obligation to report a change of address. Whether this constitutes an automatic ancillary duty in employment relationships – rendering explicit mention unnecessary – has not yet been conclusively clarified by statute or case law. Consequently, in light of the employee-friendly decision-making shown by German courts, this may represent one of the potential stumbling blocks mentioned at the beginning.