Germany: Receipt Of A Termination Where The Termination Letter Is Handed Over To The Spouse Outside Of The Domestic Home (BAG Dated 9 June 2011 - 6 AZR 687/09)

The spouse of an employee whose employment is to be terminated can be treated as the so-called authorised recipient if he/she shares a domestic home with the employee and there is nothing to oppose the assumption that the spouse is suited to pass on the notice of termination to the employee. In this case, the termination notice can also be handed over outside the domestic home. Receipt by the employee is deemed to have taken place when one can expect the declaration to have be passed on to the employee under normal circumstances and not already with the provision of the termination notice to the spouse.

On 9 June 2011 the BAG had to decide in a case where the employer did not hand the letter of termination over to the employee herself at her place of work, rather, due to her absence, to the spouse of the employee on 31 January 2008 – and that is at his place of work in a DIY store (docket no.: 6 AZR 687/09). The spouse did not pass on the letter to his wife on 31 January 2008, rather only on 1 February 2008. The claimant subsequently asserted that the employment relationship did not terminate until 31 March 2008 as opposed to already on 29 February 2008, observing the ordinary termination notice period of one month to the end of a month, for she had not received the termination until 1 February 2008.

The BAG rejected this opinion. It established that, according to prevailing public opinion, the spouse of the claimant acted as authorised recipient when he accepted receipt of the termination on 31 January 2008. Under normal circumstances one can expect the spouse to return to the shared domestic home on the same day and therefore pass on the notice of termination to the claimant on the same day. It was of no consequence that the spouse accepted receipt of the termination at his place of work as opposed to in the domestic home.

Naturally, the best choice is always to hand over the (original) notice of termination to the employee whose employment is to be terminated in order to ensure the timely receipt of the termination. Should this not be possible, however, then in order to meet the deadline the handing over of the letter to the spouse can under certain circumstances be an alternative if this person and, in particular, his/her location/place of work, is known. It is a known fact that putting the notice of termination into the employee's letterbox does not necessarily secure its receipt on the same day. Handing over the letter to underage children living in the domestic home of the employee also does not automatically lead to the receipt of the declaration on the same date; here it depends on the circumstances in the individual case, in particular on the age and maturity of the child. The risk of a belated receipt is too high, with the result this method is not advisable.

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